AHLA's Speaking of Health Law
The American Health Law Association (AHLA) is the largest nonprofit, nonpartisan educational organization devoted to legal issues in the health care field. AHLA's Speaking of Health Law podcasts offer thoughtful analysis and insightful commentary on the legal and policy issues affecting the American health care system.
AHLA's Speaking of Health Law
Maintaining a Culture of Safety in the Face of Workplace Violence Trends in Health Care
Health care is one of the top industries for workplace violence injuries. Sarah R. Skubas, Principal, Jackson Lewis PC, speaks with Jonathan C. Bumgarner, Partner, Hall Render Killian Heath & Lyman PC, about the factors that contribute to workplace violence in the health care industry. They discuss the role of OSHA and other regulatory bodies, state law trends, legal risks and penalties, what’s on the horizon, and top action items to keep employees and patients safe. Jonathan co-authored an article for Health Law Connections magazine about this topic. From AHLA’s Labor and Employment Practice Group.
Watch this episode: https://www.youtube.com/watch?v=RepYqequzpI
Read Jonathan’s Health Law Connections article: https://www.americanhealthlaw.org/content-library/connections-magazine/article/e8283e8d-8f5b-4497-b953-1f3abc1c4a09/Maintaining-a-Culture-of-Safety-in-the-Face-of-Wor
Learn more about AHLA’s Labor and Employment Practice Group: https://www.americanhealthlaw.org/practice-groups/practice-groups/labor-and-employment
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SPEAKER_02:Hi, and welcome to the AHLA podcast. I am Sarah Skewis. I am a principal with Jackson Lewis. I also co-lead the firm's National Healthcare Industry Group and am a proud vice chair of the AHLA Labor and Employment Practice Group. I am thrilled to have with me today John Baumgardner, who is a partner with Hall Render. He has 20 years plus experience helping healthcare employers navigate all sorts of fun issues that arise in the labor and employment space. We're so glad to have you here today, John. Thanks for joining us.
SPEAKER_00:Sure. Thanks. Glad to be here with you, Sarah.
SPEAKER_02:So the purpose of today's podcast is to talk a little bit more in detail about the Fantastic Connections article you recently published. So tell us a little bit about We know healthcare experiences more workplace violence injuries than any other industries, right? That's what makes our industry really challenging in a lot of ways. Can you help us understand sort of what are the contributing factors that really lead to this problem facing our industry?
SPEAKER_00:Yeah, thanks. It's a curious question, right? Because we like to think of uh hospitals and medical centers as places that people go for peace and healing and safety, but unfortunately, too often that's not the case. Uh, I think there are a number of factors that uh kind of explain that. A lot of it comes down to uh hospitals just tend to be a very stressful emotional environment. Um, you think about the workers in healthcare, and we remember during the pandemic, the healthcare heroes, which I fully support that title. I mean, they're work healthcare workers right now are overworked due to staffing shortages. They may be working double shifts or overtime, heavy, heavy hours. And that could understandably lead to frayed nerves or emotional instability that could cause them to lash out even in violent ways when they uh otherwise wouldn't under normal circumstances. So that's part of it. Uh that emotional stressful factor applies to patients too. And patients go to hospitals when they're not feeling well, when they're sick or they're injured or they're hurting. And because of that, their anxiety may be spiking themselves. They may be worried about their medical condition and just have a lot of fear that could be driving uh maybe the lesser angels of their nature. Um, their family members can also be very stressed out about this. They may be upset or concerned about the level of care or the speed at which their loved ones are getting care, and that can make family members or other visitors to hospitals act out. And then, of course, we know, especially in ER, a lot of patients will come to the hospital under uh sometimes severe mental uh or psycho psychiatric disturbances, or maybe they're addicts that are drug seeking and maybe not getting the answers or the products that they're looking for. And too often they behave angrily to uh to hearing no to that when they're in a vulnerable state. So that's certainly part of it on the people side. And frankly, there are environmental factors that are specific to healthcare workplaces as well. Um hospitals at least are usually 24-7 operations, so they're they're working uh long hours, late nights, uh, third shifts with fewer staff around, uh, which itself could make them more vulnerable to um unwanted visitors or certain crimes or other unsafe developments. A lot of times they're architecturally not designed with safety or security in mind. There could be poor lighting or easy access, lots of lots of doors that make it just difficult to secure properly. So some of those architectural features kind of play into this as well. So I think there are just a lot of factors that unfortunately cause healthcare workplaces to be disproportionately unsafe as compared to other industries.
SPEAKER_02:Yeah, I I think you hit the nail on the head, you know, especially specifically with the people side, right? Because not just employees on employee risk, but that patient risk, particularly when you start looking at behavioral health clients or even skilled nursing where they're dealing with perhaps an elderly patient population with um dementia or other cognitive impairment. It's a lot different than your average workplace. Right.
SPEAKER_00:And don't forget home health, right? A lot of you know going into someone's home, you know. You don't know what you're gonna find, right?
SPEAKER_02:Yeah, definitely. I I just was at a client site this week leaving a hospital, and they had that sign heading to the parking garage, encouraging staff to do a wellness check-in before and after with a dial-in option. So we know that our clients that you and I work with on the day-to-day basis are really trying, but inevitably these are issues that unfortunately across the uh healthcare space our clients are gonna have to navigate. Um, you know, many of us are familiar with uh what might be considered uh a sort of a scary word, OSHA, right? Um we're all pretty familiar with OSHA's role in regulating workplace violence, particularly in the healthcare space. But could you elaborate for our listeners today a little bit more about any specific federal or importantly state OSHA plans that maybe some healthcare employers need to be aware of and thinking about?
SPEAKER_00:Yeah, I um I have partners in some of our other offices that could speak more eloquently on various state OSHA plans, but at the at the federal level, um I can tell you that OSHA has certainly recognized um workplace violence as a recognized hazard in the healthcare industry. So it's been on their radar for many, many years. They have never published a specific standard that hospitals or healthcare employers must comply with. So instead, they uh enforce uh this issue through their catch-all, through the general duty clause, which essentially just says covered employers must provide a workplace that's free of known hazards that could cause death or serious harm to employees. Um, OSHA has also many years ago published voluntary guidelines since they don't have that specific standard yet. And those voluntary guidelines are specific to addressing workplace violence in the healthcare and the social services sectors. They include a whole host of best practices and other recommendations on hazard prevention and control. And I know OSHA has been considering publishing a specific standard for many years. Um, but it's an agency, as you know, Sarah, they they work at a somewhat glacial pace. So sometimes we hear that a standard is coming, and sometimes they'll even get bold and confident and say it's coming by October of next year, but but too often for a variety of reasons, those deadlines don't seem to be met. So in the meantime, I I think the the best we can do, at least at the federal level, uh, is to make sure that you're following, following their voluntary guidelines, which are, which are pretty good, I would say.
SPEAKER_02:Yeah, I think we all just had flashbacks to that OSHA ETS and whether it was going to be permanent. Um yeah, I mean, and I think that's great advice, right? Like even though it's not mandatory, those are the things that OSHA investigators are gonna be looking at. They're looking at their guidance when they're coming in and assessing whether or not our healthcare clients are compliant. Um we certainly are, you know, when I think workplace violent, I think OSHA front of mind. But other than OSHA, are there other regulatory bodies that govern workplace violence issues in healthcare that you think some of our legislators may not be as uh front of mind of?
SPEAKER_00:Yeah, well, well, one agency um that uh is concerned about workplace violence in healthcare is CMS, the Centers for Medicare and Medicaid Services. So they have jurisdiction over hospitals and healthcare entities that participate in Medicare, right? And they have published a handful of what they call conditions of participation or COPs that specifically address things like uh patients' right to receive uh care in a safe facility, right? Or um others have uh there's I think I believe there's a COP that specifically requires the hospital to prepare an emergency preparedness plan that contains specific risk assessments and other types of training requirements of staff and volunteers on what their preparedness plan says and does and how to implement it. Uh I know CMS has proactively reached out to state survey agency directors and and kind of leaned on them to issue citations to hospitals that uh are failing to meet these regulatory requirements. Um CMS is definitely concerned about this. The the Department of Health and Human Resources, uh I'm sorry, Health and Human Services, HHS, they're also interested in this topic. Uh you probably saw, I think it was last spring, they they posted a specific bulletin that addressed workplace health, workplace violence in healthcare, and that too contained specific recommendations that they wanted to see implemented. And that was some of the same things on the other list that we've talked about, strengthening security protocols, uh enhancing emergency preparedness plans, uh supporting your workforce with mental health or counseling or their psychological support for those that may have been victims of workplace violence, or maybe even if they're not their victims, but they've they've witnessed it, that can be a traumatizing event for them. Uh and then also, and this is a kind of an important factor in how we improve things in this space, is encouraging policies and reporting procedures where employees feel comfortable reporting incidents of violence or threats of violence. Uh I fear that that too often healthcare workers, again, they're they're heroes, right? And and they know and they understand that they are unfortunately going to be subjected to some bad behavior from patients and family members and visitors sometimes. And I'm afraid that there's a culture out there that they're just supposed to endure that and and not report it for fear of being known as a troublemaker, or maybe even because they fear retaliation, like they might be terminated or or lose favor with their manager or department head for having reported it. And frankly, that that's something that really needs to be addressed. That's just not where you want to be or where any hospital or healthcare entity wants to be, where their employees are fearful about reporting really any kind of non-compliant behavior, uh, not the least of which is workplace violence issues.
SPEAKER_02:Yeah, I think it's really interesting because, you know, even we don't think a lot about conditions of participation and workplace violence, right? But they are weaved throughout there and the potential, you know, with a CMS uh surveyor on site looking at these issues in a way that we wouldn't have thought of. I know in terms of employee engagement, right, we're seeing um it's not necessarily new, but we're seeing state legislation really focusing on like workplace violence subcommittees, right? Where employees, non-managers need to be part of the solution. And some states require statutory participation. Uh, a lot of uh union-driven initiatives there, I think. But right, we're seeing um, you know, a lot of various ways to help address that critical problem that is multifaceted. Um, along those lines, uh, I won't ask you to tell us every single state, John, but I know we are continue. I I saw even today, right, out of Massachusetts, um, we're continuing to see an increase in states creating workplace violence laws specific to the healthcare industry. Uh, today uh there was a step further in Massachusetts where the House, I think, passed some legislation around workplace violence uh protection specific to our industry. And those can take a lot of different forms. Um, can you just tell us a little bit about some of the key takeaways of the trends we're seeing in the states that are specifically regulating these issues for healthcare employers?
SPEAKER_00:Yeah, that's a good question. I this is another one of those areas where states seem to be picking up where Congress has maybe been unwilling or unable to pass federal legislation on this issue. Uh, I know we both represent a lot of healthcare clients that are in multi-state environments, and that becomes a very challenging um thing to have to know and comply with all kinds of different standards. That the example that comes top of mind for me is you know, all of the different paid sick leave laws and not just states, but cities and municipalities, and navigating all those is certainly a challenge for our for our clients. And the same is true with uh workplace violence and healthcare legislation. I I think you've seen um a variety of different approaches. You know, states are supposed to be the laboratories of democracy, uh, right? Um, some of them are using more of a carrot approach. I think Colorado has an interesting law where they they passed legislation that's aimed at um tying reimbursement rates for hospitals to those hospitals' ability to achieve certain performance metrics related to workplace safety. I think that's a real interesting way to address this. And then you'll see uh you'll see the stick method as well. I know Michigan has passed a law. Uh it's not aimed at hospitals, it's really aimed at the public, and it's it's they've amended their penal code by essentially doubling the financial pines, uh fines or penalties that someone who harasses or assaults a healthcare worker will be subjected to. This is similar to what we have seen in the airline industry, where you know, if you assault someone off the street, you know, you're subject to certain penalties. If you assault an airline worker, uh um, then those penalties are much, much worse. Um so Michigan's kind of followed the stick approach there. Uh, I believe Maryland passed a law that was more geared around just raising public awareness about the inherent um safety risks in workplace, uh in healthcare workplaces. Um, that can be a way to kind of drive up public support for legislation. And then a number of states have passed laws that have really codified some of the um some of the uh things in OSHA's voluntary guidelines, like conducting specific um hazard analyses and and providing security risk assessments that are specific to your organization and then developing corresponding security plans to address those specifically identified risks. I know a number of states have have gone down that path, which to me seems like a pretty productive law to pass.
SPEAKER_02:I think it's really interesting because all of what we're talking about is so focused on workplace violence, but it goes hand in hand with employee engagement, right? When you look at the states that are passing these laws, you'll often see SEIU 1199, right? Some of the healthcare unions really involved. And I encourage clients, and I think you do too, John, right, to really view it as a proactive employee engagement tool. It's not just about keeping the workplace patients and employees safe. Um, it's also a really great tool. So for those multi-state clients who may not have to comply with, you know, a certain state law in another state they operate in, it's a really proactive employee engagement tool that I think we don't often talk about when we're talking about workplace violence across the spectrum of um employment issues in the workforce. So I think it's uh it's interesting to hear about some of those unique states, though, uh, and we'll continue to keep an eye on it. Tell us a little bit about um some of the legal risks, and critically you touched upon it a little bit, but penalties that arise um when employers are not compliant with all these various regulatory obligations. You talked about sort of conditions of participation, right? Like money, right? We all get a little scared in our industry. Can you tell us a little bit more about those implications?
SPEAKER_00:Yeah, so for those conditions of or participation, I mean, ultimately uh when you're if you're a hospital that's being subjected to a to a state survey, if you get a citation, generally you have an opportunity to correct um whatever has been identified that you you were cited for. But if you're a repeat offender or just refuse to uh cooperate or comply with the um with the COPs or or whatever accreditation standards that might apply to you, then ultimately your license, the hospital's license, its ability to do business could could be on the line. Um certainly with OSHA, OSHA has the authority to assess uh fines and and penalties uh if they find those uh entities, worker uh employers that are violating, again, it would right now it would just be the general duty clause. There have been some lawsuits challenging OSHA's authority to do that, uh, but OSHA is certainly confident that it has that authority. And those penalties can become substantial, particularly if if you're a repeat offender. Um, those numbers can get pretty pretty scary. Uh and then there are some downstream effects also to having been cited by by OSHA, uh, having that on your record, because that could lead to an increase in your insurance rates or premiums for your workers' compensation policies or possibly other general liability policies. Uh OSHA findings can and are used uh as evidence of negligence in private lawsuits. You could find yourself sued for negligent hiring or negligent retention or negligent credentialing of providers, uh, where essentially uh the plaintiff is arguing that you failed to take reasonable steps to uh to keep an employee or a patient or a visitor safe. That's a significant issue. Um, interestingly, because we're talking about health care, uh there's a federal statute called MTALA, the Emergency Medical Treatment Labor Act, that that works its way into this analysis as well. Um, because we know that that some of the violence is caused by patients and the violence is driven by the underlying medical condition, right? Someone comes in and they might be intoxicated or suffering from withdrawal, or maybe they have some psychological something going on with them and they're acting out in violent ways. And Mtala doesn't, it prohibits you from just kicking them out or calling the cops and saying, take take this troublesome person away. Um you have to provide a medical screen, you have to uh stabilize them or or transfer them. And and failure to do that, there's significant penalties there, both for the hospital and the provider. Um, civil monetary penalties are available. And then both could be excluded from participation in federal healthcare programs, which is the ultimate hammer in the industry that you and I work in. So, you know, those are those are some of the legal risks. You mentioned, you know, a big one a couple of times, the union organizing. That's a big practical risk because you talk about giving a union something to talk about during an organizing campaign. Hey, your employer is failing to keep you safe, or hey, your your employer will retaliate you if you say if you speak out too much about unsafe conditions or staffing ratios or whatever it may be. We're here to protect you. You need us to represent you because your employer isn't doing enough on their own. And that's certainly a real concern, along with morale issues and retention and absenteeism and all these byproducts of workplace violence incidents that are that are really kind of a scary thing for our hospital clients.
SPEAKER_02:Yeah, it's it's that you're right, and it's the talking points, right? So you've got laws like Mtala, but you can't just tell the employee, sorry, we don't have a choice, right? We have to treat this patient. So it is, again, a real opportunity for our healthcare clients to think across the spectrum of all those issues when navigating it. Um all right. So tell us what's on the horizon, John. Uh, workplace violence legislation, what do we think is coming down the pike next?
SPEAKER_00:Well, I think you're going to see more and more states kind of jump on board. Um that that's kind of a something that happens sometimes. A lot of states borrow from other states that have passed laws on all kinds of different, you know, employment-related concepts, but this this is one of those. So I think we'll see more state legislation. At the federal level, I don't know. I I mean, we've got a couple of pieces of legislation that that have been proposed in the past. Uh, in April of this year, there was a law called the Workplace Violence Prevention for Healthcare and Social Services Workers Act. Um, that's a law that did a few things, but primarily it would have required OSHA to publish a specific standard on this issue and given them a pretty tight deadline to do so. I think maybe a year to publish a temporary standard, and then the the final rule standard, the permanent standard would have to follow within two or three years after that. Um again, that was proposed, but has not yet been passed. Uh and then there's another law, the Safe Healthcare Workers Act. That's similar to that law in Michigan that I mentioned, uh, kind of tracks the airline industry approach. Um that was proposed in 2023 and again in 2024. Again, I don't think it ever got out of committee, uh, never get a vote on that. But but the idea is it would have provided more protection for healthcare workers from the public uh when they are uh when they are subjected to assaults or intimidating work uh I'm sorry, intimidating behavior directed their way, which again happens so often in in these very stressful environments.
SPEAKER_02:Yeah, definitely. Well, this is uh you can tell I'm a true healthcare labor and employment management site attorney, because I could talk about this forever, but um, we are at the end, and I do have one final question. You deal with this all the time with healthcare clients, right? So, what are some of the top action items our listeners can take away from our discussion to kind of think about how to protect themselves against all of these risks and critically keep both our patients and our employees safe?
SPEAKER_00:Yeah, you know, I think you've kind of hit the nail on the head a couple of times with your comments about employee engagement. So I I think my first piece of advice um would be that employers are never disserved by getting their employees more engaged in things. And this is one in particular because it's their health and safety that's on the line, right? This is one in particular, I think, where where healthcare employers need to really get out in front of this issue and make it a top priority and make sure their employees see that it's a it's a top priority. Executive leadership needs to be visible regarding this issue and reaching out to um to employees to get their ideas and hear their concerns because they're the ones that are going to be able to tell you, you know, and identify the risks that they're most concerned about. And not speculative, right? I mean, that they're concerned about these risks because they've been subjected to them. Uh so establishing that that culture of safety and establishing just a zero tolerance. I know it's a cliche, but I think it's applicable to this situation, zero tolerance for any violence or any threats of violence in your workforce. And your employees are going to be uh very receptive to that. Um I guess the the last thing I would say is I I would challenge healthcare executives and the C-suite to try to focus on the benefits of prioritizing safety in their workplaces. I mean, of course, risk mitigation with all the laws and OSHA surveys and things like that that we've talked about as part of that. But there's a patient care side of this as well. Healthcare workers, the accreditation agencies know this, right? Healthcare workers that feel safe and secure at work provide better patient care. Uh so it's going to lead to better patient outcomes, better patient satisfaction scores, which is top of mind for many healthcare executives. Uh, it's gonna enhance employee morale, which certainly helps with retention, and that's more important than it's ever been with the workforce shortages that we're seeing and the projections in in healthcare that are really scary. Uh it's gonna take away some of those union organizing arguments for those entities that don't have unions and and wanna don't want unions. Um, all for all of these reasons, I think there's really no reason not to make this a top priority.
SPEAKER_02:I love the business case, right? Like when in doubt after the business case. Well, John, I really can't thank you enough on behalf of the AGLA Labor and Employment Practice Group. It's been a real pleasure. So thank you so much for your time.
SPEAKER_00:Thank you, Sarah. I've really enjoyed talking to you about this.
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