Workplace Violence Prevention for Health Care and Social Service Workers Act - H.R.1309

BACKGROUND: The Education and Labor Committee reported the bill by a 26-18 vote. The Energy and Commerce and Ways and Means committees have not acted on the measure.

The 15 million workers in the health care and social service professions experience far more workplace violence than workers in other professions — primarily violence from the patients and social service beneficiaries with whom they interact and other outsiders. In 2016 the Government Accountability Office (GAO) reported that health care and social service workers experience rates of violence that are as much as 12 times higher than other workers. In a five-year span from 2009 to 2013, GAO said that 730,000 assaults against health care workers were reported and that those numbers are likely under-reported.

Bureau of Labor Statistics (BLS) data for 2017 show that health care and social service workers suffered 69% of all workplace violence injuries caused by persons in 2017, and that those workers were nearly five times as likely to suffer a workplace violence injury than workers overall. For health care workers in particular BLS data showed a sharp increase from 2016 to 2017 in serious injuries resulting from workplace violence, with health care workers missing work because of injuries from assaults increasing from 15.1 to 16.6 days away per 10,000 full-time workers for workers in hospitals, from 30.8 to 33.4 days for workers in nursing and residential care facilities, from 6.9 to 8.9 days for workers in home health services, and from 122.2 to 179.7 days for workers in psychiatric and substance abuse hospitals. That compared to an increase from 2.8 to 2.9 days for all industries.

The Education and Labor Committee in 2013 requested that GAO study trends in health care and social service workplace violence and identify options for the Occupational Safety and Health Administration (OSHA) to address this violence. In response to the resulting 2016 GAO report and recommendations, lawmakers asked OSHA to develop a workplace safety standard for health care workers. OSHA subsequently issued non-enforceable guidelines for preventing workplace violence, and in January 2017 (the last month of the Obama administration) announced it would develop a federal standard to prevent health care workplace violence. No further action has been taken, although OSHA says it plans to convene a panel with small businesses to discuss the possible effects of a violence prevention standard on small businesses.

Member Concerns

Supporters of the bill, primarily Democrats, say it is needed to protect health care and social service workers from increasing workplace violence. They point out that individual states have successfully implemented violence prevention rules without disrupting businesses or placing undue burdens on them, and that those state rules have demonstrably reduced incidents of violence. They note that OSHA currently can use only their General Duty Clause authority under the law in seeking to reduce workplace violence, and that businesses are pushing back against even that weak enforcement effort through litigation. They argue that OSHA in the past has taken years to conduct rulemakings, saying the bill is needed to ensure lifesaving rules can be established in a timely manner.

Opponents of the bill, primarily Republicans, say Democrats are once again overreaching and that the bill represents a costly solution in search of a problem. They note that OSHA already is planning to convene a small business panel to discuss the possible effects of national workplace violence rules, saying such input will be critical towards the development of any rule and that taking this step is more than was ever done under the previous administration. Democrats, they argue, are simply angling to place blame on the Trump administration despite the lack of movement during the Obama administration. They also say the bill will undermine public transparency by excluding a public comment period for issuance of a final rule, noting that public comments are invited only for the interim rule.

SUMMARY: This bill directs the Labor Department through the Occupational Safety and Health Administration (OSHA) to issue a national standard that requires employers of health care and social service workers to write and implement a workplace violence prevention plan that helps prevent and protect employees from violent incidents at work.

It establishes a timeline for development of the standard, with a final standard to be issued within 42 months of enactment. The standard would apply to both public and private health care and social service facilities, as well as health care and social service activities performed in the field, and must require those employers to develop, implement and maintain a workplace violence prevention plan that addresses the hazards and risks specific to each facility, unit or activity. Employers must also address violent incidents as they arise and must keep records of violent incidents and how they were addressed.

Workplace Violence Prevention Plans

The bill requires all covered employers, within six months of an interim final standard being issued (see below), to develop, implement and maintain an effective written workplace violence prevention plan for their covered employees at each workplace. Plans must be developed and implemented with the participation of employees, and if applicable, collective bargaining representatives.

In developing plans, those parties must identify workplace violence risks to employees at their particular workplace, including risk factors specific to the patient population and past violent incidents. As appropriate to the work setting, the plan must include work practice controls such as security staffing, training on de-escalation techniques, and systems to identify and flag clients with a history of violence, as well as "engineering" controls such as monitoring systems, barrier protection and entry procedures, adequate exit routes, and weapons detectors.

The plans must include procedures for reporting and responding to incidents, for conducting post-incident investigations, and for emergency responses. Employers must adopt a policy that prohibits retaliation against employees for reporting an incident.

 Plans must be available at all times to covered employees, and employers and their employees must together conduct annual evaluations of their plans.

Violent Incident Investigations

The bill requires employers, as soon as practicable after a workplace violence incident, to conduct an investigation of the incident and take corrective actions.

The employer must review the circumstances of the incident and the effectiveness of plan controls or measures, and solicit input from involved employees, their representatives and their supervisors about the cause of the risk and whether further corrective measures could have prevented the incident. Employers must document their findings, recommendations and any corrective measures taken with respect to each investigation.

OSHA Development of Violence Prevention Standard

Individual workplace violence prevention plans must be based on workplace violence prevention standards to be developed by OSHA — within a year of enactment OSHA must issue an interim final standard that is based on OSHA's 2015 the Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers.

That interim standard would take effect 30 days after being issued and require certain employers in the health care and social service sectors to develop and implement a comprehensive workplace violence prevention plan to protect workers and other personnel from workplace violence. Prior to its implementation the interim final standard must be published in the Federal Register and allow for a 30-day public comment period.

If the department fails to implement an interim final standard within a year of enactment, the measure provides that its provisions are considered to be in effect for enforcement purposes.

Within two years of enactment OSHA must issue a proposed final standard on workplace violence prevention, with the final standard to be issued within 42 months of enactment. The final standard must provide at least as much protection as any existing state plan approved by the department under the 1970 law that created OSHA and which governs workplace health and safety rules.

(The 1970 law allows states to develop, implement and administer their own workplace health and safety requirements — if approved by OSHA and if the standards are at least as high as federal standards. Currently, 26 states have had such plans approved, five of which cover only state and local government employers.)

Covered Facilities & Services

Under the bill, OSHA's new workplace violence prevention standards would apply to most health care facilities, including the following: hospitals, including specialty hospitals; freestanding emergency centers; substance use disorder treatment centers; psychiatric treatment facilities and mental health clinics; and community care settings, including mental health clinics and group homes.

They would also apply to federal health care facilities (such as Veterans Affairs or Indian Health Service facilities) — but not to employer-provided health care facilities, such as onsite clinics.

In addition, they would apply to numerous services and operations, including the following: those provided in field work settings, including home health care, home-based hospice, and home-based social work; and emergency services and transport. OSHA could determine additional facilities and services that must adhere to the standards.

The measure specifies that the new workplace violence prevention standards developed by OSHA will apply to hospitals and skilled nursing facilities operated by state and local governments that accept Medicare for those facilities in the 24 states that lack an OSHA-approved state plan. It sets civil monetary penalties for violations of those standards.

Employers that must comply with the new workplace violence prevention standard include direct employers, contractors, subcontractors, or temporary service firms that employ an individual to work at a covered facility or perform covered services. The bill exempts individuals who privately employ, in their own residence, someone to perform covered services for the individual or a family member.

Training & Recordkeeping

The bill requires covered employers to regularly train their health care and social service employees regarding their individual workplace violence prevention plans, and to keep detailed records on violent incidents that do occur and the responses to those incidents.

Employee Training

Employers each year must provide training to employees regarding the employer's workplace violence prevention plan, including by detailing identified workplace violence hazards, work practice control measures, reporting and response procedures, and employee rights. If an employee's job changes, he or she must be educated about the hazards specific to the new job. New employees must be trained before starting the job.

Supervisors and managers must receive additional hazard recognition training to ensure they can recognize high-risk situations and don't assign employees to situations that predictably compromise their safety.

All training must provide employees with the opportunity to ask questions, give feedback on the training and request additional instruction or clarification. All initial training must be face-to-face; annual training on the plan following the initial training may be conducted by live video if in-person training is impracticable.

Recordkeeping Requirements

Employers must keep records for at least five years on each plan, including workplace violence risk and hazard assessments, corrective measures undertaken, and training conducted.

Employers must maintain a Violence Incident Log that records all incidents at each site, and must prepare an annual summary of violent incidents that must be publicly posted for three months each year at the worksite as well as posted online. By February 15 each year, employers must report to the Labor Department on the frequency and severity of workplace violence and include incident response and post-incident investigation records.

All records and logs must be available, upon request, to covered employees and their representatives.

CBO Cost Estimate

The Congressional Budget Office (CBO) estimates that the bill would increase direct spending by $35 million over five years and $60 million over 10 years as well as increase spending subject to appropriation by $16 million over five years, assuming the appropriation of necessary amounts. The measure does not affect revenues, but because it affects direct spending, pay-as-you-go procedures apply.

The legislation contains both intergovernmental and private sector mandates, as defined in the Unfunded Mandates Reform Act (UMRA), on health care and social service facilities by requiring them to comply with the new OSHA rule. CBO estimates that in the first two years after the rule is in effect, the annual public-sector cost of the mandates would be at least $100 million and would exceed the intergovernmental threshold established in UMRA ($82 million in 2019, adjust annually for inflation) in those years. In later years CBO estimates public entities would spend at least $55 million annually to comply. CBO also estimates that the cost to private entities would be at least $2.7 billion in the first two years the final rule is in effect and at least $1.3 billion annually thereafter. Those costs would exceed the private-sector threshold ($164 million in 2019, adjusted annually for inflation) in each of the first five years in which the rule was in effect.