In response to calls from labor groups and unions to develop federal standard that addresses workplace violence in the healthcare and social service sectors, former OSHA chief David Michaels stated during a January 10 meeting that OSHA found that there is ample evidence showing workplace violence is a rampant issue, and that OSHA will work towards establishing a standard. OSHA’s then deputy assistant secretary, Jordan Barab, held an optimistic outlook for the chances of the rule’s development, even in the deregulatory environment of the Trump administration.
In their July 12 petition for a standard, labor groups and unions argued that the OSH Act’s General Duty Clause, an enforcement mechanism requiring companies to maintain safe workplaces, is ineffectual in preventing workplace violence. Bureau of Labor Statistics (“BLS”) data showing an increase in workplace violence during recent years reflects this conclusion, they argued. The January 10 meeting served as the impetus for OSHA to pursue a standard, and OSHA is currently seeking public comment on a December 7 request for information (“RFI”) that closes on April 6. Although OSHA officials are uncertain whether the agency can identify the factors that cause violent incidents, labor representatives disagree.
The Obama Administration’s grant of the nursing and labor groups’ petition is seen as a strategic decision on behalf of the Obama Administration to create a legal pathway to sue OSHA should the Trump Administration decline to pursue the standard. In a January 17 interview, Jordan Barab stated that the next step in establishing the workplace violence standard would be to analyze the potential impacts of the rule on small businesses through an advisory committee under the Regulatory Flexibility Act. Additionally, although the Trump Administration could slow-roll the rule development process for this standard, labor interests have some hope that the ongoing RFI could provide information and momentum for states to pursue their own rules preventing workplace violence.
Labor interests are seeking an OSHA workplace violence standard that contains:
- Requirements for employers to assess risk factors for workplace violence and to involve workers who treat patients directly.
- Training and procedure requirements for post-incident care, including workers who provide healthcare in home settings. Employers would also be required to develop plans that mitigate risks on job sites.
- Requirements that are enforceable.
That is, if the deregulation-focused Trump Administration moves forward with developing the workplace violence standard.