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The Occupational Safety and Health Review Commission affirmed a citation against a social services employer whose employee was fatally assaulted in another test of the U.S. Occupational Safety and Health Administration’s use of the general duty clause.
The review commission last week vacated citations against a commercial roofing company in a split decision in a closely watched case that tested OSHA’s ability to issue citations under the Occupational Safety and Health Act’s general duty clause for heat-related hazards.
The review commission was asked for the first time to decide whether an alleged workplace violence hazard, specifically one posed by a schizophrenic client of an employer in the social services industry, is a recognized hazard that the employer must “free” from its workplace, according to the decision in Secretary of Labor v. Integra Health Management Inc. published Tuesday.
Owings Mills, Maryland-based Integra employs service coordinators to help its clients, known as members, obtain and maintain medical care, according to review commission documents. These clients are sent to Integra by health insurers after reviewing claims histories to identify individuals who are not receiving appropriate care for, in many cases, chronic medical conditions like mental illness. Typically, the health insurers have been unable to maintain contact with these individuals and the Integra service coordinators are responsible for locating and assisting them in receiving medical treatment. Integra trains its service coordinators in several ways, such as through an Internet-based course, but they are not clinically trained, according to the documents.
In August and September 2012, Integra hired several new service coordinators for its Florida team, including a 25-year-old recent college graduate with no prior experience in social work or working with the mentally ill who was assigned to a client who suffered from cardiovascular disease and schizophrenia. Unknown to the employee, Integra and the health insurer, the client had a prior criminal record, including for aggravated battery with a deadly weapon and aggravated assault with a weapon. The employee unsuccessfully tried to meet with the client in November 2012 and returned on Dec. 10 to complete her assessment, which had to be done, per Integra’s requirements, by Dec. 14. During this visit, the client attacked the employee with a knife, stabbing her nine times, and she died later that day.
An administrative law judge affirmed an OSHA citation issued to Integra alleging a violation of the general duty clause for exposing employees “to the hazard of being physically assaulted by members with a history of violent behavior.”
To prove a violation of the general duty clause, the Secretary of Labor must establish four elements: that a condition or activity in the workplace presented a hazard, that the employer or its industry recognized the hazard, that the hazard was causing or likely to cause death or serious physical harm and that a feasible and effective means existed to eliminate or materially reduce the hazard.
Integra argued that “the violent conduct of a third party is an inherently unpredictable act of a different nature than the hazards typically regulated under the general duty clause.” But Commissioners Cynthia Attwood and James Sullivan determined that the allegation of workplace violence as presented in the Integra case is a cognizable hazard under the Occupational Safety and Health Act.
“Here, there is a direct nexus between the work being performed by Integra’s employees and the alleged risk of workplace violence,” the commissioners said. “Integra requires its service coordinators to meet face-to-face with members, many of whom have been diagnosed with mental illness and have criminal backgrounds as well as a history of violence and volatility.”
The record also supported the conclusion that the hazard of a service coordinator being physically assaulted during a face-to-face meeting by a client with a history of violent behavior was clearly recognized by Integra, in part due to its own training, handbook and existing policies, according to their decision.
The secretary suggested measures to abate the hazard, including creating a stand-alone, written workplace violence prevention program, determining the behavioral history of new or transferred members, implementing a buddy system as needed and providing all staff with a reliable way to summon assistance when needed, but the company argued that the secretary failed to establish that the proposed abatement measures would materially reduce the incidence of the workplace violence hazard. However, the commissioners ruled that the secretary’s expert testimony was sufficient to establish the feasibility and efficacy of the proposed abatement measures, according to the ruling.
The commissioners concluded that a violation of the general duty clause was proven and affirmed the citation as serious and assessed the secretary’s $7,000 proposed penalty.
While concurring with the decision to affirm the citation in this case, however, two of the commissioners expressed concerns about OSHA’s use of the general duty clause to address workplace violence risk.
“I believe that Congress did not contemplate that the Secretary would apply the general duty clause to workplace violence hazards,” Mr. Sullivan said in his concurrence. “Nevertheless, I agree that the general duty clause does cover the hazard alleged in this specific case, but I arrive at this conclusion because, in addition to the conclusions I reach with Commissioner Attwood regarding hazard recognition and feasible abatement, I find that the Secretary established that the hazard cited here was reasonably foreseeable to a ‘reasonable employer’ presented with the specific facts and circumstances in this case.”
Commissioner Heather MacDougall stated there is “no doubt that Integra’s service coordinators were vulnerable employees and the tragedy in this case was foreseeable,” she said. “Indeed, the hazard of workplace violence could be said to not only be known by Integra’s industry but by anyone paying attention to the news media today.”
She also agreed with her fellow commissioners’ determination that the secretary met the burden to establish the feasibility of abatement element in this case.
But she expressed concern about the review commission establishing a precedent that the workplace violence hazard alleged here is a hazard covered by the general duty clause, invoking the adage that “bad facts make bad law.”
“My hope is that this precedent will be revisited in a future decision and, even better, that OSHA will continue in its effort to promulgate a standard that addresses workplace violence,” she said. “My concurring opinion today should not be construed as a failure to acknowledge that workplace violence is a serious employee safety concern, particularly in healthcare and social service settings where employees are at the greatest risk of violent events. However, while the desire to address workplace violence is admirable, the result cannot be reached at the expense of the law that binds us.”
Integra and its attorney could not be immediately reached for comment while OSHA declined to comment.
The Maryland Court of Appeals determined that state workplace safety regulators had substantial evidence to find that a construction contractor violated the general duty clause in the state’s labor and employment code in an incident that led to an employee being fatally injured by a collapsed beam.