By Jeff Jones
Special to the UCBJ
A recent decision issued March 4, 2019, from the OSHA Review Commission (“the Commission”) in Washington, D.C., will allow OSHA Compliance Officers to more easily issue general duty clause citations stemming from violence in the workplace. The Commission is the intermediate level appellate tribunal for OSHA decisions which are appealed from initial administrative law judge decisions. Appeals taken from the Commission’s decisions go to the United States Circuit Courts of Appeal. At issue in the case was whether Integra Health Management, Inc. (“Integra”), which employs “service coordinators” to help its clients obtain and maintain medical care, violated the general duty clause by failing to adequately address a workplace violence hazard — specifically, the risk of Integra’s employees being physically assaulted by a client with a history of mental illness and/or violent behavior during a face-to-face meeting. In this case, a 25-year-old employee of Integra, who was a recent college graduate with no experience in social work or dealing with persons with mental illness, was stabbed to death by a mentally ill client (with a violent criminal history) during a face-to-face meeting in the client’s home. OSHA issued fines and citations to the company for violation of the general duty clause, which were upheld by an administrative law judge and, subsequently, the Commission.
Section 5(a)(1) of the Occupational Safety and Health Act of 1970, known as the general duty clause, states that “[e]ach employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). To prove a violation of the general duty clause, OSHA must establish that: (1) a condition or activity in the workplace presented a hazard; (2) the employer or its industry recognized the hazard; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) a feasible and effective means existed to materially reduce the hazard. In the case of Integra, the Commission made the following findings:
1. The company violated the general duty clause requirement that employers must “furnish to each of his employees, employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” According to the Commission, the company failed to adequately address the risk of its employees from being physically assaulted. “The record established that company could have taken precautions preventing injury by hiring, training, performing, and assigning work appropriately, but chose not to in the interest of saving money and time.”
2. In its Safety Narrative, Accident Investigation Summary & Findings, OSHA stated the company “did not have a cohesive and comprehensive written workplace violence prevention program to address hazards that included engineering and administrative controls, personal protective equipment and training programs,” and there was no workplace violence program previous to the incident. The ruling pointed out that Integra’s Employee Handbook that addressed workplace violence was a “very general statement” that “was not specific to social workers or service coordinators in the field per se.” The Commission concluded that it did not adequately prepare the employees to prevent and deal with workplace violence.
Of note, the Assistant Secretary of Labor included in the complaint that Integra could have had a stand-alone, written Workplace Violence Prevention Program that addressed the scenarios unique to its field employees who were likely to encounter mentally ill or violent clients, but had failed to do so. The decision against the company included a $10,500 penalty and requirement to provide a workplace violence prevention program. An administrative law judge twice upheld the OSHA citations in 2015.
The key take-away here is that an employer’s general workplace violence policy may not be sufficient to be in compliance with the general duty clause of OSHA. Each employer needs to determine if it needs to have a more detailed workplace violence policy tailored to the specific circumstances/situations its employees can be expected to encounter, including the need for training specifically directed at preparing employees to appropriately deal with those situations.