By Carla J. Gunnin, Bradford T. Hammock and Alka Ramchandani

March 31, 2017

Healthcare employers in California must comply with a host of new workplace safety requirements, effective April 1, 2017, on preventing workplace violence. The new requirements include written workplace violence prevention plans, additional recordkeeping, and preventive training, among other things.

On December 8, 2016, the state’s Office of Administrative Law endorsed and approved California’s new workplace violence prevention health care regulation. The scope of this regulation is going to affect almost all health care facilities, medical groups, and other care facilities, including senior care centers, nursing homes, and retirement homes. Healthcare employers should not take the new regulation lightly as we can expect California Division of Occupational Safety and Health (Cal/OSHA) soon may come knocking, aggressively enforcing the regulation.

Scope of the Regulation

Cal/OSHA stipulated that the new regulation affects all health care facilities, using an exceptionally broad definition of what it considers a health care facility.

A covered health care facility is one that provides diagnosis, treatment, convalescence, or rehabilitation (including for pregnancy) and has the capacity to admit more than 24 people.

The regulation lists 17 types of covered facilities:

1. General acute care hospitals
2. Acute psychiatric hospitals
3. Skilled nursing facilities
4. Intermediate care facilities
5. Intermediate care facilities for the developmentally disabled habilitative
6. Special hospitals
7. Intermediate care facilities for the developmentally disabled
8. Intermediate care facilities for developmentally disabled-nursing
9. Congregate living health facilities
10. Correctional treatment centers
11. Nursing facilities
12. Intermediate care facilities for the developmentally disabled with continuous nursing
13. Hospice facilities
14. Home health care and home-based hospice
15. Emergency medical services and medical transport
16. Drug rehab clinics
17. Outpatient medical services to the incarcerated in correctional facilities and detention settings

Types of Violence in a Health Care Setting

Cal/OSHA designed its regulation to prevent workplace violence for the four types of workplace violence recognized by safety regulators:

1. Type I: The individual has no legitimate relationship to the workplace and enters the workplace to commit a criminal act. An example in the health care industry is an aggressor coming to a hospital to assault a patient. This type of violence is more common in facilities located in high crime areas.
2. Type II: The individual is either the recipient or the object of a service provided by the workplace. Examples are patients, residents, or visitors of the health care facility. This is common with patients of dementia, schizophrenia, autism, or other mental or physical debilitating conditions.
3. Type III: The individual has an employment relationship with the workplace, such as a current or former employee.
4. Type IV: The individual has no direct relationship with the workplace, but typically has a relationship with an employee, such as a significant other or family member. This commonly involves a domestic violence situation.

After legislators recognized a significant increase in violence associated with the health care industry, they recommended that Cal/OSHA create a regulation to target and eliminate violence against individuals specialized in providing medical care. Although workplace violence in Type IV situations is the most common in general, Types I and II are more common in health care. Consequently, the regulation targets preventing injuries to employees by patients and their loved ones.

Workplace Violence Prevention Plan

The new regulation requires that employers establish, implement, and maintain a written Workplace Violence Prevention Plan (WVPP) for each unit, service, and operation.

This means a healthcare employer may have separate WVPP sections that apply to and reflect the different hazards in separate units. For instance, the hazards associated with the labor and delivery and nursery departments are different from those of the orthopedic unit. The emergency room, usually located on the ground floor of a hospital, probably needs the most controls because it conducts intake and discovery of all patients. Examples of potential threats in the emergency room include gunshot victims, gang violence victims, and patients with dementia or other psychiatric conditions. A surgery center may not need as many controls as some of the other units because hospitals often quarantine these departments for sterilization processes and, therefore, they already have other preventive devices, such as doors that lock or need a keycard to access.

The new regulation states the WVPP can be a part of the Injury or Illness Prevention Plan (IIPP) or a separate document, but it must be specific to address hazards and corrective measures for each unit.

According to the new regulation, the Workplace Violence Prevention Plan must include 13 items that are familiar and new to employers.

1. Names or job titles of persons responsible for implementing the plan. Similar to the IIPP, the WVPP requires someone to be in charge of the plan. This person should be in charge of gathering all data, keeping all training records and violent incident logs, and updating the plan as necessary.
2. Effective procedures to obtain the active involvement of employees and their representatives. The regulation requires that employees be involved in developing, implementing, and reviewing the plan. Employers should provide employees with a process to discuss incidents and activities that occur in each unit. Often, this involves having live training and allowing employees to discuss their experiences. In a recent training at a community hospital, for example, a doctor revealed that a patient’s visitor assaulted him in the parking lot after the patient passed away. He experienced long-term emotional trauma from the experience, but never discussed it with anyone at work. It is imperative that employers develop procedures that encourage employees to discuss these type of situations.
3. Procedures to coordinate the implementation of the program with the continent or contingent workforce or employees of other employers. The plan must cover situations where the contingent workforce or other employers’ workforce operate at the facility. For instance, if the facility has a medical imaging department or a laboratory operated by a separate company, that company must be involved in developing and implementing the WVPP.
4. Anti-retaliation statement. The plan must state the employer’s retaliation policy. The policy must state that the employer prohibits retaliation against any employee who seeks assistance from local emergency services or law enforcement, or who obtains assistance from law enforcement.
5. Procedures to coordinate supervisory and management roles with requirements under the IIPP standard. The WVPP must be consistent with the responsibilities described in the IIPP. All employers should review their IIPP when drafting the WVPP to ensure consistency.
6. A central coordination procedure. The WVPP must contain effective procedures for obtaining assistance from the appropriate law enforcement agency. This may include creating and implementing a central coordination procedure.
7. Procedures for responding to reports of workplace violence. The regulation requires employers to develop a plan that describes how they will respond to each workplace violence incident. This should show coordination and implementation of the policy. It also gives employees some expectations after a violent incident occurs in the workplace. This plan includes effective procedures for the employer to accept and respond to reports of Type III violence and to prohibit retaliation against any employee who makes a report to law enforcement.
8. Procedures to communicate with employees about workplace violence matters. If an event occurs or there is a potential incident that may occur, Cal/OSHA wants employers to have means to communicate and warn all employees. The regulation requires that employers have a procedure to give certain types of warnings. For instance, if a patient has a tendency to be overly aggressive toward the nursing staff, and the staff has experienced a near miss incident with the patient, the employer should have a procedure to ensure all staff members that encounter this patient are aware of the potential of a violent incident. This is often the case in home nursing care where different nurses provide care to a patient.
9. Procedures to develop and provide training. The employer must create a training program that provides initial, refresher, and pre-work training (discussed further below). Employers must allow employees and their representatives to participate in developing and delivering the training program.
10. Assessment procedures to identify and evaluate risk factors. At least once a year, employers must evaluate and review environmental risk factors, community-based risk factors, and types of health care provided, among others things. For instance, if the hospital is located in a high crime area, the hospital may need to assess what is the risk that an employee may become a victim while at work.
11. Procedures to identify and evaluate patient-specific risk factors and visitor assessment. These risk factors would involve evaluating the propensity of a patient or a patient’s visitor becoming violent. Cal/OSHA will look closely at these procedures for patients that have such conditions as dementia, autism, sociopathy, schizophrenia, and other mental or physical conditions that include paranoia or uncontrollable actions.
12. Engineering and work practice controls. The WVPP requires employers to state what engineering and work practice controls they have. This is one of the most controversial areas of the regulation. According to Cal/OSHA, metal detectors and other instruments may be required to ensure employees’ safety. Employers should develop a proper code system for their hospital to alert all employees of threats or potential threats. Moreover, Cal/OSHA will be evaluating areas controlled by health care facilities, such as parking lots, to ensure proper lighting or security. If patients have a tendency to become violent, Cal/OSHA may require that a panic or security button be easily accessible to any employee in the room. Cal/OSHA will evaluate whether staff levels are adequate for each shift, rooms are configured to provide safe exits or quick access to alert a code, safety plans are developed to prevent transport of weapons in the facility, public entrances are monitored and controlled, sufficient security personnel is maintained, an alarm system or other effective means to defuse an emergency exists, and there is an effective response team to respond to such threats as active shooters and to contact law enforcement.
13. Procedures for post-incident response and investigation. The WVPP must include procedures for post-incident response and investigation. Similar to the IIPP, it should include sample forms used by the employer and completed for each investigation. It also should include steps on what the WVPP custodian/investigator will do in the event of an investigation and steps to ensure the plan will be updated to prevent the recurrence of an incident. The procedures must include providing medical care post-incident, identifying employees involved, providing individual trauma counseling, debriefing those involved, reviewing new foreseeable risk factors, and reviewing the effectiveness of corrective measures.

Employers must review the WVPP annually. Cal/OSHA will assess whether employers are evaluating staffing patterns and patient classification risks, as well as other aspects of security.

Further, employers should plan to review and update the WVPP whenever necessary to address new procedures, hazards, and foreseeable risks after incidents or after receiving any other information from employees.

Violent Incident Log

A new recordkeeping requirement under the regulation is similar to Cal/OSHA 300 logs. It requires all health care facilities to keep a Violent Incident Log that records every incident, post-incident response, and workplace injury investigation.

The Log must detail the following:

1. Date, time, and department of the incident
2. Detailed description of the incident
3. Classification of who committed the violence (private patient and employee information should be excluded)
4. Description of the circumstances
5. Location of where the incident occurred
6. Type of incident (physical with what type of force, weapon involved, threat of force or weapon, and sexual assault or threat, including an unwanted verbal/physical sexual contact, animal attack, or other)
7. Consequences of the incident (whether medical treatment was provided, who needed assistance, whether security or law enforcement was contacted, amount of time lost from work, and actions taken to prevent continuing threat)
8. Information about the person completing the Log

Workplace Violence Prevention Training

Healthcare employers must provide training to employees that includes:

1. Initial training involving all aspects of the WVPP
2. Refresher training annually to employees with patient contact activities and for all supervisors
3. Pre-work training to employees that are to respond to alarms

Initial training should be provided with the WVPP and include how to recognize a potential violent situation, strategies to avoid physical harm, reporting processes (including how to report to law enforcement), alarm and alert systems at the hospital, locations for sheltering in the event of an incident, hospital exit routes, resources available for employees coping with incidents, and an interactive opportunity for employees to ask questions and receive responses.

The new regulation notes that the training should include the active involvement of employees and their representatives in developing training curricula and training materials.

A question raised during the regulation’s comment process was whether online training would be sufficient. Training not given in person must meet all the subject-matter requirements and provide for interactive questions to be answered within one business day by a person knowledgeable about the WVPP.

The regulation orders additional training for employees who respond to alarms or other notifications of violent incidents or whose assignments involve confronting or controlling persons exhibiting aggressive or violent behavior (such as psychiatric patients, patients with gunshots or other evidence of injuries from violence, and patients with “mental deterioration,” including dyslexia and autism). The additional topics for training include general and personal safety measures, aggression and violence prediction factors, the assault cycle, characteristics of aggressive and violent behavior, verbal and physical maneuvers to defuse potential situations, strategies to prevent physical harm, proper restraining techniques, appropriate use of medication or chemical restraints, and an opportunity to physically practice maneuvers and techniques.

Reporting Requirement for Certain Hospitals

Special reporting requirements for general acute care hospitals, acute psychiatric hospitals, and special hospitals include reporting the use of force against an employee by a patient or a person accompanying a patient that results in or has a high likelihood to result in psychological trauma or stress. It is irrelevant whether the employee sustains an injury. These facilities also must report any incident involving the use of a firearm or other dangerous weapon.

Similar to violations for failing to report a serious violation, Cal/OSHA now can cite employers for failing to report a violent incident. However, the regulation is unclear on what qualifies for reporting. For instance, what does “high likelihood to result in psychological trauma or stress” mean? What is considered a weapon? If an instable patient grabs a needle and syringe or a scalpel, is that considered a weapon? What if someone brings in a gun but does not use the gun or threaten anyone with the gun, is that considered an incident? Where do we draw the line?

If the incident results in an injury, involves a weapon, or presents an urgent or emergent threat to the welfare, health, or safety of hospital personnel, a report must be made within 24 hours after the employer knows or, with a diligent inquiry, would have known about the incident. This means if the employer knows of an incident, but is not aware of an injury, it should report the incident within 24 hours. If there is a high likelihood of an injury, emotional or physical, the employer should report the incident.

The regulation defines injury as “a fatality or an injury that requires inpatient hospitalization for a period in excess of 24 hours for other than medical observation or in which an employee suffers a loss of any member of the body or suffers any serious degree of permanent disfigurement.”

An “urgent or emergent threat” to the welfare, health, or safety of hospital personnel means that hospital personnel are exposed to a realistic probability of death or serious physical harm.

All other reports must be made within 72 hours, including threats that have no probability of causing injury. In the past, employers were required to report only actual injuries, not near misses.

All reports should include the following:

1. The hospital name, address, contact person, phone number, and email address
2. Name and contact information for any other employers affected by the incident
3. Date, time, and specific location of the incident
4. Brief description of the incident
5. Number of employees injured and types of injuries sustained
6. Whether security or law enforcement was contacted
7. Whether there is a continuing threat
8. A unique incident identifier
9. Whether the incident was reported to the nearest Cal/OSHA office

Reports should keep confidential the names of employees or patients. Cal/OSHA may request this information later.

Employer should provide requested supplemental information to Cal/OSHA within 24 hours of the request.

Finally, employers should make all reports through a specific online mechanism established by Cal/OSHA.

Records

Employers should create and retain reports of hazard identification, evaluation, and correction, similar to the IIPP standard. However, employers need not keep records of periodic or scheduled inspections.

Employers also should retain training records for at least one year. These records should include training dates, summary of the training, names and qualifications of the trainer, and names and job titles of attendees. The name of the department or unit also should be recorded.
Employers should keep records of violent incidents, including violent incident logs and investigations, for five years.

Finally, employers should plan to provide all documents to the Chief of Cal/OSHA or employees upon request.