Healthcare workplace violence bill passes House and moves to Senate: What employers can expect

Felix Digilov
Fisher & Phillips LLP

On November 21, 2019, the House of Representatives passed The Workplace Violence Prevention for Health Care and Social Services Workers Act (H.R. 1309) by a 251-159 vote.

The bill, sponsored by Rep. Joe Courtney (D-CT), seeks an enforceable federal standard that will require employers to establish comprehensive workplace violence prevention plans to protect healthcare and social services workers. The stated goal of this legislation is to curb and prevent the rising level of violence against healthcare providers such as nurses, physicians, social workers and emergency responders.

The proposed legislation would direct OSHA to develop and issue an interim rule on workplace violence prevention in the healthcare and social services sector within one year after the date of enactment of the bill. If passed, the bill would also require that OSHA promulgate a proposed final standard within 2 years of enactment, and then issue a final standard within 42 months of the enactment date. Pursuant to the bill, the final standard must provide at least the same level of protection as any state workplace violence plan OSHA has approved, and also prohibits retaliation against employees who report incidents of violence.

Citing a 2016 report by the Government Accountability Office, Rep. Courtney stated that rates of nonfatal workplace violence against health care workers in private sector and state inpatient facilities were five to 12 times higher than the estimated rates for workers overall. This is in addition to the fact that 70 percent of nonfatal workplace assaults in 2016 took place in the healthcare and social service sectors. Further, between 2011 and 2016, as reported in the U.S. Bureau of Labor Statistics Census of Fatal Occupational Injuries, at least 58 hospital workers died as a result of violence in their workplaces.

Should the bill pass into law, it will place significant new burdens on the employer:
• The employer must develop and implement a workplace violence prevention plan.
• The employer must conduct violent incident investigations and risk assessments for potential workplace violence hazards.
• The employer must provide training and education to employees who may be exposed to workplace violence,
• The employer must maintain records related to workplace violence for at least five years,
• The employer is required to provide an annual report to the DOL detailing “the frequency, quantity, and severity of workplace violence, and any incident response and post-incident investigation[.]”
• The employer must “conduct an annual written evaluation, conducted with the full, active participation of covered employees and employee representatives” and make any necessary changes after the evaluation; and
• Employees are protected from retaliation for reporting a workplace violence incident or participating in an incident investigation.

The bill now moves to the Republican-controlled Senate, where it faces an uphill battle, both with the Senate body and a possible veto from the White House. In addition to cost concerns, the Trump Administration issued a Statement of Administrative Policy outlining concerns with the bill and arguing that the bill “mandates adopting California’s healthcare workplace violence standards nationwide, which would undercut important principles of federalism and could put workers’ health and jobs in jeopardy.” The administration also expressed concern that OSHA had previously announced plans for a Small Business Regulatory Enforcement Fairness Act (“SBREFA”) panel to address workplace violence issues and thus, the proposed legislation would “short-circuit” the SBREFA process.

While employers in the healthcare and social services fields should continue monitoring the developments surrounding H.R. 1309, these employers should nevertheless review and update their existing plans and procedures to better protect their employees from workplace violence. Even without a new federal standard, OSHA can issue costly citations under the General Duty clause of the Occupational Safety and Health Act of 1970 (OSH Act), with “Willful or Repeated” citations costing as much as $132,598 per violation. Finally, in this historically tight labor market, healthcare employers should consider implementing workplace health and safety policies that will aid workforce integrity, boost employee morale, and help retain and recruit valuable employees.

Felix Digilov / Fisher & Phillips LLP
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fdigilov@fisherphillips.com | O: (713) 292-5624