A national home health care provider, doing business in York Pennsylvania as Epic Health Services, was recently issued a citation and significant fine by The Occupational Safety and Health Administration (OSHA) in connection with an assault of an employee by a client.
Even a sanitized version of the facts is disturbing. The employer provides health care and therapy services to clients in their homes. One of the employer’s home health workers was sexually assaulted by a client of the employer while working in the client’s home. Prior to this incident, another employee had specifically warned the employer about sexual assaults. In addition, the employer has received numerous prior reports of verbal, physical and sexual assaults directed toward employees, and of a concern that an employee was working in a home where domestic violence occurred.
Following a complaint by the assaulted employee, and resulting investigation, OSHA determined that the employer failed to adequately protect its employees from the dangers of workplace violence. More specifically, OSHA concluded that Epic Health exposed employees to risk of physical assault while provided home health care to clients and support services to family members, without any system in place for reporting or addressing threats or incidents of violence. In its official news release for this case, OSHA stated: “Epic Health Services failed to protect its employee from life-threatening hazards of workplace violence and failed to provide an effective workplace violence prevention program.”
Obviously, the fact that the employer ignored prior employee reports of hazards and the potential for violence at outside work locations (in clients’ homes) was considered significant in terms of OSHA’s conclusion that the employer failed to adequately protect its workers and provide a safe workplace.
As a result, the employer was cited for a “willful” violation for failing to maintain a safe workplace under OSHA’s General Duty Clause, which is a catch-all type provision that is applied when the issue under consideration is not covered by a specific regulation, as well as a second citation for several “other than serious” recordkeeping violations. In addition, the employer was hit with hefty fines totaling $98,000.00 (including the current maximum $70,000 fine for the willful violation plus an additional $28,000 for the recordkeeping violations).
In the primary citation, OSHA also stated a number of suggested abatement measures that the employer was encouraged to implement in an effort to address workplace violence issues and avoid future similar violations, including:
- A written, comprehensive workplace violence prevention program;
- A workplace violence hazard assessment and security procedures for each new client;
- Procedures to control workplace violence such as a worker’s right to refuse to provide services in a clearly hazardous situation without fear of retaliation;
- A workplace violence training program;
- Procedures to be taken in the event of a violent incident in the workplace, including incident reports and investigations; and
- A system for employees to report all instances of workplace violence, regardless of severity.
As with any OSHA citation, Epic Health Services has 15 days to request a conference with OSHA’s area director to discuss the findings and proposed penalties or file a formal contest with before the Occupational Safety and Health Review Commission to challenge the findings and penalties.
There are many lessons that the prudent employer can take from this case, including:
- Always be on the lookout for and continuously assess safety and health risks and hazards in the workplace;
- Keep your eyes and ears open, and listen to and consider legitimate employee concerns and complaints;
- Don’t ignore, and apply safety programs to, outside/remote work locations;
- Address safety risks in a timely manner;
- Recognize that it’s an employer’s responsibly to assess risks and keep employees safe at work within established standards, even with respect to risks, hazards and dangers created by non-employees/third parties; and
- Maintain, review and update as necessary appropriate and comprehensive policies and procedures addressing workplace safety.
All employers should be attentive to and serious about workplace safety issues, particularly considering OSHA’s ongoing aggressive enforcement efforts and the potential for significant liability (including that the already substantial maximum penalty amounts are expected to be significantly increased in the near future). Don’t be the unprepared employer that is faced with the likely unfavorable and costly outcome of an unexpected OSHA investigation. Instead, take a proactive approach, review safety programs and overall OSHA compliance status now – before an investigator is at your door – and significantly reduce your risk of liability.
Please feel free to call any member of our Labor and Employment Law Practice Group if you have any questions about this post and for further guidance regarding OSHA compliance and workplace safety issues.