December 23, 2025 • 26 mins
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_01 (00:04):
This episode of AHLA Speaking of Health Law is
brought to you by AHLA membersand donors like you.
For more information, visitAmericanHealthlaw.org.
SPEAKER_02 (00:17):
Hi, and welcome to the AHLA podcast.
I am Sarah Skewis.
I am a principal with JacksonLewis.
I also co-lead the firm'sNational Healthcare Industry
Group and am a proud vice chairof the AHLA Labor and Employment
(00:37):
Practice Group.
I am thrilled to have with metoday John Baumgardner, who is a
partner with Hall Render.
He has 20 years plus experiencehelping healthcare employers
navigate all sorts of fun issuesthat arise in the labor and
(00:58):
employment space.
We're so glad to have you heretoday, John.
Thanks for joining us.
SPEAKER_00 (01:02):
Sure.
Thanks.
Glad to be here with you, Sarah.
SPEAKER_02 (01:05):
So the purpose of today's podcast is to talk a
little bit more in detail aboutthe Fantastic Connections
article you recently published.
So tell us a little bit about Weknow healthcare experiences more
workplace violence injuries thanany other industries, right?
(01:29):
That's what makes our industryreally challenging in a lot of
ways.
Can you help us understand sortof what are the contributing
factors that really lead to thisproblem facing our industry?
SPEAKER_00 (01:42):
Yeah, thanks.
It's a curious question, right?
Because we like to think of uhhospitals and medical centers as
places that people go for peaceand healing and safety, but
unfortunately, too often that'snot the case.
Uh, I think there are a numberof factors that uh kind of
explain that.
A lot of it comes down to uhhospitals just tend to be a very
(02:06):
stressful emotional environment.
Um, you think about the workersin healthcare, and we remember
during the pandemic, thehealthcare heroes, which I fully
support that title.
I mean, they're work healthcareworkers right now are overworked
due to staffing shortages.
They may be working doubleshifts or overtime, heavy, heavy
(02:27):
hours.
And that could understandablylead to frayed nerves or
emotional instability that couldcause them to lash out even in
violent ways when they uhotherwise wouldn't under normal
circumstances.
So that's part of it.
Uh that emotional stressfulfactor applies to patients too.
And patients go to hospitalswhen they're not feeling well,
(02:49):
when they're sick or they'reinjured or they're hurting.
And because of that, theiranxiety may be spiking
themselves.
They may be worried about theirmedical condition and just have
a lot of fear that could bedriving uh maybe the lesser
angels of their nature.
Um, their family members canalso be very stressed out about
(03:09):
this.
They may be upset or concernedabout the level of care or the
speed at which their loved onesare getting care, and that can
make family members or othervisitors to hospitals act out.
And then, of course, we know,especially in ER, a lot of
patients will come to thehospital under uh sometimes
severe mental uh or psychopsychiatric disturbances, or
(03:33):
maybe they're addicts that aredrug seeking and maybe not
getting the answers or theproducts that they're looking
for.
And too often they behaveangrily to uh to hearing no to
that when they're in avulnerable state.
So that's certainly part of iton the people side.
And frankly, there areenvironmental factors that are
(03:54):
specific to healthcareworkplaces as well.
Um hospitals at least areusually 24-7 operations, so
they're they're working uh longhours, late nights, uh, third
shifts with fewer staff around,uh, which itself could make them
more vulnerable to um unwantedvisitors or certain crimes or
other unsafe developments.
(04:15):
A lot of times they'rearchitecturally not designed
with safety or security in mind.
There could be poor lighting oreasy access, lots of lots of
doors that make it justdifficult to secure properly.
So some of those architecturalfeatures kind of play into this
as well.
So I think there are just a lotof factors that unfortunately
(04:37):
cause healthcare workplaces tobe disproportionately unsafe as
compared to other industries.
SPEAKER_02 (04:43):
Yeah, I I think you hit the nail on the head, you
know, especially specificallywith the people side, right?
Because not just employees onemployee risk, but that patient
risk, particularly when youstart looking at behavioral
health clients or even skillednursing where they're dealing
with perhaps an elderly patientpopulation with um dementia or
(05:05):
other cognitive impairment.
It's a lot different than youraverage workplace.
Right.
SPEAKER_00 (05:11):
And don't forget home health, right?
A lot of you know going intosomeone's home, you know.
You don't know what you're gonnafind, right?
SPEAKER_02 (05:18):
Yeah, definitely.
I I just was at a client sitethis week leaving a hospital,
and they had that sign headingto the parking garage,
encouraging staff to do awellness check-in before and
after with a dial-in option.
So we know that our clients thatyou and I work with on the
day-to-day basis are reallytrying, but inevitably these are
(05:39):
issues that unfortunately acrossthe uh healthcare space our
clients are gonna have tonavigate.
Um, you know, many of us arefamiliar with uh what might be
considered uh a sort of a scaryword, OSHA, right?
Um we're all pretty familiarwith OSHA's role in regulating
workplace violence, particularlyin the healthcare space.
(06:01):
But could you elaborate for ourlisteners today a little bit
more about any specific federalor importantly state OSHA plans
that maybe some healthcareemployers need to be aware of
and thinking about?
SPEAKER_00 (06:14):
Yeah, I um I have partners in some of our other
offices that could speak moreeloquently on various state OSHA
plans, but at the at the federallevel, um I can tell you that
OSHA has certainly recognized umworkplace violence as a
recognized hazard in thehealthcare industry.
So it's been on their radar formany, many years.
(06:36):
They have never published aspecific standard that hospitals
or healthcare employers mustcomply with.
So instead, they uh enforce uhthis issue through their
catch-all, through the generalduty clause, which essentially
just says covered employers mustprovide a workplace that's free
of known hazards that couldcause death or serious harm to
(07:00):
employees.
Um, OSHA has also many years agopublished voluntary guidelines
since they don't have thatspecific standard yet.
And those voluntary guidelinesare specific to addressing
workplace violence in thehealthcare and the social
services sectors.
They include a whole host ofbest practices and other
(07:20):
recommendations on hazardprevention and control.
And I know OSHA has beenconsidering publishing a
specific standard for manyyears.
Um, but it's an agency, as youknow, Sarah, they they work at a
somewhat glacial pace.
So sometimes we hear that astandard is coming, and
sometimes they'll even get boldand confident and say it's
coming by October of next year,but but too often for a variety
(07:44):
of reasons, those deadlinesdon't seem to be met.
So in the meantime, I I thinkthe the best we can do, at least
at the federal level, uh, is tomake sure that you're following,
following their voluntaryguidelines, which are, which are
pretty good, I would say.
SPEAKER_02 (07:58):
Yeah, I think we all just had flashbacks to that OSHA
ETS and whether it was going tobe permanent.
Um yeah, I mean, and I thinkthat's great advice, right?
Like even though it's notmandatory, those are the things
that OSHA investigators aregonna be looking at.
They're looking at theirguidance when they're coming in
and assessing whether or not ourhealthcare clients are
(08:19):
compliant.
Um we certainly are, you know,when I think workplace violent,
I think OSHA front of mind.
But other than OSHA, are thereother regulatory bodies that
govern workplace violence issuesin healthcare that you think
some of our legislators may notbe as uh front of mind of?
SPEAKER_00 (08:38):
Yeah, well, well, one agency um that uh is
concerned about workplaceviolence in healthcare is CMS,
the Centers for Medicare andMedicaid Services.
So they have jurisdiction overhospitals and healthcare
entities that participate inMedicare, right?
And they have published ahandful of what they call
conditions of participation orCOPs that specifically address
(09:02):
things like uh patients' rightto receive uh care in a safe
facility, right?
Or um others have uh there's Ithink I believe there's a COP
that specifically requires thehospital to prepare an emergency
preparedness plan that containsspecific risk assessments and
other types of trainingrequirements of staff and
(09:24):
volunteers on what theirpreparedness plan says and does
and how to implement it.
Uh I know CMS has proactivelyreached out to state survey
agency directors and and kind ofleaned on them to issue
citations to hospitals that uhare failing to meet these
regulatory requirements.
Um CMS is definitely concernedabout this.
(09:46):
The the Department of Health andHuman Resources, uh I'm sorry,
Health and Human Services, HHS,they're also interested in this
topic.
Uh you probably saw, I think itwas last spring, they they
posted a specific bulletin thataddressed workplace health,
workplace violence inhealthcare, and that too
contained specificrecommendations that they wanted
(10:08):
to see implemented.
And that was some of the samethings on the other list that
we've talked about,strengthening security
protocols, uh enhancingemergency preparedness plans, uh
supporting your workforce withmental health or counseling or
their psychological support forthose that may have been victims
(10:28):
of workplace violence, or maybeeven if they're not their
victims, but they've they'vewitnessed it, that can be a
traumatizing event for them.
Uh and then also, and this is akind of an important factor in
how we improve things in thisspace, is encouraging policies
and reporting procedures whereemployees feel comfortable
reporting incidents of violenceor threats of violence.
(10:52):
Uh I fear that that too oftenhealthcare workers, again,
they're they're heroes, right?
And and they know and theyunderstand that they are
unfortunately going to besubjected to some bad behavior
from patients and family membersand visitors sometimes.
And I'm afraid that there's aculture out there that they're
just supposed to endure that andand not report it for fear of
(11:13):
being known as a troublemaker,or maybe even because they fear
retaliation, like they might beterminated or or lose favor with
their manager or department headfor having reported it.
And frankly, that that'ssomething that really needs to
be addressed.
That's just not where you wantto be or where any hospital or
healthcare entity wants to be,where their employees are
fearful about reporting reallyany kind of non-compliant
(11:37):
behavior, uh, not the least ofwhich is workplace violence
issues.
SPEAKER_02 (11:41):
Yeah, I think it's really interesting because, you
know, even we don't think a lotabout conditions of
participation and workplaceviolence, right?
But they are weaved throughoutthere and the potential, you
know, with a CMS uh surveyor onsite looking at these issues in
a way that we wouldn't havethought of.
I know in terms of employeeengagement, right, we're seeing
(12:04):
um it's not necessarily new, butwe're seeing state legislation
really focusing on likeworkplace violence
subcommittees, right?
Where employees, non-managersneed to be part of the solution.
And some states requirestatutory participation.
Uh, a lot of uh union-driveninitiatives there, I think.
But right, we're seeing um, youknow, a lot of various ways to
(12:28):
help address that criticalproblem that is multifaceted.
Um, along those lines, uh, Iwon't ask you to tell us every
single state, John, but I knowwe are continue.
I I saw even today, right, outof Massachusetts, um, we're
continuing to see an increase instates creating workplace
violence laws specific to thehealthcare industry.
(12:50):
Uh, today uh there was a stepfurther in Massachusetts where
the House, I think, passed somelegislation around workplace
violence uh protection specificto our industry.
And those can take a lot ofdifferent forms.
Um, can you just tell us alittle bit about some of the key
takeaways of the trends we'reseeing in the states that are
(13:11):
specifically regulating theseissues for healthcare employers?
SPEAKER_00 (13:15):
Yeah, that's a good question.
I this is another one of thoseareas where states seem to be
picking up where Congress hasmaybe been unwilling or unable
to pass federal legislation onthis issue.
Uh, I know we both represent alot of healthcare clients that
are in multi-state environments,and that becomes a very
challenging um thing to have toknow and comply with all kinds
(13:37):
of different standards.
That the example that comes topof mind for me is you know, all
of the different paid sick leavelaws and not just states, but
cities and municipalities, andnavigating all those is
certainly a challenge for ourfor our clients.
And the same is true with uhworkplace violence and
healthcare legislation.
I I think you've seen um avariety of different approaches.
(14:01):
You know, states are supposed tobe the laboratories of
democracy, uh, right?
Um, some of them are using moreof a carrot approach.
I think Colorado has aninteresting law where they they
passed legislation that's aimedat um tying reimbursement rates
for hospitals to thosehospitals' ability to achieve
certain performance metricsrelated to workplace safety.
(14:23):
I think that's a realinteresting way to address this.
And then you'll see uh you'llsee the stick method as well.
I know Michigan has passed alaw.
Uh it's not aimed at hospitals,it's really aimed at the public,
and it's it's they've amendedtheir penal code by essentially
doubling the financial pines, uhfines or penalties that someone
(14:43):
who harasses or assaults ahealthcare worker will be
subjected to.
This is similar to what we haveseen in the airline industry,
where you know, if you assaultsomeone off the street, you
know, you're subject to certainpenalties.
If you assault an airlineworker, uh um, then those
penalties are much, much worse.
Um so Michigan's kind offollowed the stick approach
(15:03):
there.
Uh, I believe Maryland passed alaw that was more geared around
just raising public awarenessabout the inherent um safety
risks in workplace, uh inhealthcare workplaces.
Um, that can be a way to kind ofdrive up public support for
legislation.
And then a number of states havepassed laws that have really
(15:24):
codified some of the um some ofthe uh things in OSHA's
voluntary guidelines, likeconducting specific um hazard
analyses and and providingsecurity risk assessments that
are specific to yourorganization and then developing
corresponding security plans toaddress those specifically
(15:45):
identified risks.
I know a number of states havehave gone down that path, which
to me seems like a prettyproductive law to pass.
SPEAKER_02 (15:53):
I think it's really interesting because all of what
we're talking about is sofocused on workplace violence,
but it goes hand in hand withemployee engagement, right?
When you look at the states thatare passing these laws, you'll
often see SEIU 1199, right?
Some of the healthcare unionsreally involved.
And I encourage clients, and Ithink you do too, John, right,
(16:17):
to really view it as a proactiveemployee engagement tool.
It's not just about keeping theworkplace patients and employees
safe.
Um, it's also a really greattool.
So for those multi-state clientswho may not have to comply with,
you know, a certain state law inanother state they operate in,
it's a really proactive employeeengagement tool that I think we
(16:39):
don't often talk about whenwe're talking about workplace
violence across the spectrum ofum employment issues in the
workforce.
So I think it's uh it'sinteresting 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 umsome of the legal risks, and
critically you touched upon it alittle bit, but penalties that
(17:03):
arise um when employers are notcompliant with all these various
regulatory obligations.
You talked about sort ofconditions of participation,
right?
Like money, right?
We all get a little scared inour industry.
Can you tell us a little bitmore about those implications?
SPEAKER_00 (17:21):
Yeah, so for those conditions of or participation,
I mean, ultimately uh whenyou're if you're a hospital
that's being subjected to a to astate survey, if you get a
citation, generally you have anopportunity to correct um
whatever has been identifiedthat you you were cited for.
But if you're a repeat offenderor just refuse to uh cooperate
(17:42):
or comply with the um with theCOPs or or whatever
accreditation standards thatmight apply to you, then
ultimately your license, thehospital's license, its ability
to do business could could be onthe line.
Um certainly with OSHA, OSHA hasthe authority to assess uh fines
and and penalties uh if theyfind those uh entities, worker
(18:04):
uh employers that are violating,again, it would right now it
would just be the general dutyclause.
There have been some lawsuitschallenging OSHA's authority to
do that, uh, but OSHA iscertainly confident that it has
that authority.
And those penalties can becomesubstantial, particularly if if
you're a repeat offender.
Um, those numbers can get prettypretty scary.
Uh and then there are somedownstream effects also to
(18:27):
having been cited by by OSHA,uh, having that on your record,
because that could lead to anincrease in your insurance rates
or premiums for your workers'compensation policies or
possibly other general liabilitypolicies.
Uh OSHA findings can and areused uh as evidence of
negligence in private lawsuits.
(18:47):
You could find yourself sued fornegligent hiring or negligent
retention or negligentcredentialing of providers, uh,
where essentially uh theplaintiff is arguing that you
failed to take reasonable stepsto uh to keep an employee or a
patient or a visitor safe.
That's a significant issue.
Um, interestingly, because we'retalking about health care, uh
(19:09):
there's a federal statute calledMTALA, the Emergency Medical
Treatment Labor Act, that thatworks its way into this analysis
as well.
Um, because we know that thatsome of the violence is caused
by patients and the violence isdriven by the underlying medical
condition, right?
Someone comes in and they mightbe intoxicated or suffering from
(19:30):
withdrawal, or maybe they havesome psychological something
going on with them and they'reacting out in violent ways.
And Mtala doesn't, it prohibitsyou from just kicking them out
or calling the cops and saying,take take this troublesome
person away.
Um you have to provide a medicalscreen, you have to uh stabilize
(19:50):
them or or transfer them.
And and failure to do that,there's significant penalties
there, both for the hospital andthe provider.
Um, civil monetary penalties areavailable.
And then both could be excludedfrom participation in federal
healthcare programs, which isthe ultimate hammer in the
industry that you and I work in.
So, you know, those are thoseare some of the legal risks.
(20:13):
You mentioned, you know, a bigone a couple of times, the union
organizing.
That's a big practical riskbecause you talk about giving a
union something to talk aboutduring an organizing campaign.
Hey, your employer is failing tokeep you safe, or hey, your your
employer will retaliate you ifyou say if you speak out too
much about unsafe conditions orstaffing ratios or whatever it
(20:36):
may be.
We're here to protect you.
You need us to represent youbecause your employer isn't
doing enough on their own.
And that's certainly a realconcern, along with morale
issues and retention andabsenteeism and all these
byproducts of workplace violenceincidents that are that are
really kind of a scary thing forour hospital clients.
SPEAKER_02 (20:59):
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 achoice, right?
We have to treat this patient.
So it is, again, a realopportunity for our healthcare
clients to think across thespectrum of all those issues
when navigating it.
Um all right.
(21:20):
So tell us what's on thehorizon, John.
Uh, workplace violencelegislation, what do we think is
coming down the pike next?
SPEAKER_00 (21:28):
Well, I think you're going to see more and more
states kind of jump on board.
Um that that's kind of asomething that happens
sometimes.
A lot of states borrow fromother states that have passed
laws on all kinds of different,you know, employment-related
concepts, but this this is oneof those.
So I think we'll see more statelegislation.
At the federal level, I don'tknow.
I I mean, we've got a couple ofpieces of legislation that that
(21:52):
have been proposed in the past.
Uh, in April of this year, therewas a law called the Workplace
Violence Prevention forHealthcare and Social Services
Workers Act.
Um, that's a law that did a fewthings, but primarily it would
have required OSHA to publish aspecific standard on this issue
and given them a pretty tightdeadline to do so.
(22:12):
I think maybe a year to publisha temporary standard, and then
the the final rule standard, thepermanent standard would have to
follow within two or three yearsafter that.
Um again, that was proposed, buthas not yet been passed.
Uh and then there's another law,the Safe Healthcare Workers Act.
That's similar to that law inMichigan that I mentioned, uh,
kind of tracks the airlineindustry approach.
(22:34):
Um that was proposed in 2023 andagain in 2024.
Again, I don't think it ever gotout of committee, uh, never get
a vote on that.
But but the idea is it wouldhave provided more protection
for healthcare workers from thepublic uh when they are uh when
they are subjected to assaultsor intimidating work uh I'm
(22:55):
sorry, intimidating behaviordirected their way, which again
happens so often in in thesevery stressful environments.
SPEAKER_02 (23:04):
Yeah, definitely.
Well, this is uh you can tellI'm a true healthcare labor and
employment management siteattorney, because I could talk
about this forever, but um, weare at the end, and I do have
one final question.
You deal with this all the timewith healthcare clients, right?
So, what are some of the topaction items our listeners can
(23:24):
take away from our discussion tokind of think about how to
protect themselves against allof these risks and critically
keep both our patients and ouremployees safe?
SPEAKER_00 (23:35):
Yeah, you know, I think you've kind of hit the
nail on the head a couple oftimes with your comments about
employee engagement.
So I I think my first piece ofadvice um would be that
employers are never disserved bygetting their employees more
engaged in things.
And this is one in particularbecause it's their health and
safety that's on the line,right?
This is one in particular, Ithink, where where healthcare
(23:58):
employers need to really get outin front of this issue and make
it a top priority and make suretheir employees see that it's a
it's a top priority.
Executive leadership needs to bevisible regarding this issue and
reaching out to um to employeesto get their ideas and hear
their concerns because they'rethe ones that are going to be
(24:18):
able to tell you, you know, andidentify the risks that they're
most concerned about.
And not speculative, right?
I mean, that they're concernedabout these risks because
they've been subjected to them.
Uh so establishing that thatculture of safety and
establishing just a zerotolerance.
I know it's a cliche, but Ithink it's applicable to this
situation, zero tolerance forany violence or any threats of
(24:41):
violence in your workforce.
And your employees are going tobe uh very receptive to that.
Um I guess the the last thing Iwould say is I I would challenge
healthcare executives and theC-suite to try to focus on the
benefits of prioritizing safetyin their workplaces.
I mean, of course, riskmitigation with all the laws and
(25:03):
OSHA surveys and things likethat that we've talked about as
part of that.
But there's a patient care sideof this as well.
Healthcare workers, theaccreditation agencies know
this, right?
Healthcare workers that feelsafe and secure at work provide
better patient care.
Uh so it's going to lead tobetter patient outcomes, better
patient satisfaction scores,which is top of mind for many
(25:26):
healthcare executives.
Uh, it's gonna enhance employeemorale, which certainly helps
with retention, and that's moreimportant than it's ever been
with the workforce shortagesthat we're seeing and the
projections in in healthcarethat are really scary.
Uh it's gonna take away some ofthose union organizing arguments
for those entities that don'thave unions and and wanna don't
(25:47):
want unions.
Um, all for all of thesereasons, I think there's really
no reason not to make this a toppriority.
SPEAKER_02 (25:55):
I love the business case, right?
Like when in doubt after thebusiness case.
Well, John, I really can't thankyou enough on behalf of the AGLA
Labor and Employment PracticeGroup.
It's been a real pleasure.
So thank you so much for yourtime.
SPEAKER_00 (26:07):
Thank you, Sarah.
I've really enjoyed talking toyou about this.
SPEAKER_01 (26:15):
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SPEAKER_02 (00:17):
Hi, and welcome to the AHLA podcast.
I am Sarah Skewis.
I am a principal with JacksonLewis.
I also co-lead the firm'sNational Healthcare Industry
Group and am a proud vice chairof the AHLA Labor and Employment
(00:37):
Practice Group.
I am thrilled to have with metoday John Baumgardner, who is a
partner with Hall Render.
He has 20 years plus experiencehelping healthcare employers
navigate all sorts of fun issuesthat arise in the labor and
(00:58):
employment space.
We're so glad to have you heretoday, John.
Thanks for joining us.
SPEAKER_00 (01:02):
Sure.
Thanks.
Glad to be here with you, Sarah.
SPEAKER_02 (01:05):
So the purpose of today's podcast is to talk a
little bit more in detail aboutthe Fantastic Connections
article you recently published.
So tell us a little bit about Weknow healthcare experiences more
workplace violence injuries thanany other industries, right?
(01:29):
That's what makes our industryreally challenging in a lot of
ways.
Can you help us understand sortof what are the contributing
factors that really lead to thisproblem facing our industry?
SPEAKER_00 (01:42):
Yeah, thanks.
It's a curious question, right?
Because we like to think of uhhospitals and medical centers as
places that people go for peaceand healing and safety, but
unfortunately, too often that'snot the case.
Uh, I think there are a numberof factors that uh kind of
explain that.
A lot of it comes down to uhhospitals just tend to be a very
(02:06):
stressful emotional environment.
Um, you think about the workersin healthcare, and we remember
during the pandemic, thehealthcare heroes, which I fully
support that title.
I mean, they're work healthcareworkers right now are overworked
due to staffing shortages.
They may be working doubleshifts or overtime, heavy, heavy
(02:27):
hours.
And that could understandablylead to frayed nerves or
emotional instability that couldcause them to lash out even in
violent ways when they uhotherwise wouldn't under normal
circumstances.
So that's part of it.
Uh that emotional stressfulfactor applies to patients too.
And patients go to hospitalswhen they're not feeling well,
(02:49):
when they're sick or they'reinjured or they're hurting.
And because of that, theiranxiety may be spiking
themselves.
They may be worried about theirmedical condition and just have
a lot of fear that could bedriving uh maybe the lesser
angels of their nature.
Um, their family members canalso be very stressed out about
(03:09):
this.
They may be upset or concernedabout the level of care or the
speed at which their loved onesare getting care, and that can
make family members or othervisitors to hospitals act out.
And then, of course, we know,especially in ER, a lot of
patients will come to thehospital under uh sometimes
severe mental uh or psychopsychiatric disturbances, or
(03:33):
maybe they're addicts that aredrug seeking and maybe not
getting the answers or theproducts that they're looking
for.
And too often they behaveangrily to uh to hearing no to
that when they're in avulnerable state.
So that's certainly part of iton the people side.
And frankly, there areenvironmental factors that are
(03:54):
specific to healthcareworkplaces as well.
Um hospitals at least areusually 24-7 operations, so
they're they're working uh longhours, late nights, uh, third
shifts with fewer staff around,uh, which itself could make them
more vulnerable to um unwantedvisitors or certain crimes or
other unsafe developments.
(04:15):
A lot of times they'rearchitecturally not designed
with safety or security in mind.
There could be poor lighting oreasy access, lots of lots of
doors that make it justdifficult to secure properly.
So some of those architecturalfeatures kind of play into this
as well.
So I think there are just a lotof factors that unfortunately
(04:37):
cause healthcare workplaces tobe disproportionately unsafe as
compared to other industries.
SPEAKER_02 (04:43):
Yeah, I I think you hit the nail on the head, you
know, especially specificallywith the people side, right?
Because not just employees onemployee risk, but that patient
risk, particularly when youstart looking at behavioral
health clients or even skillednursing where they're dealing
with perhaps an elderly patientpopulation with um dementia or
(05:05):
other cognitive impairment.
It's a lot different than youraverage workplace.
Right.
SPEAKER_00 (05:11):
And don't forget home health, right?
A lot of you know going intosomeone's home, you know.
You don't know what you're gonnafind, right?
SPEAKER_02 (05:18):
Yeah, definitely.
I I just was at a client sitethis week leaving a hospital,
and they had that sign headingto the parking garage,
encouraging staff to do awellness check-in before and
after with a dial-in option.
So we know that our clients thatyou and I work with on the
day-to-day basis are reallytrying, but inevitably these are
(05:39):
issues that unfortunately acrossthe uh healthcare space our
clients are gonna have tonavigate.
Um, you know, many of us arefamiliar with uh what might be
considered uh a sort of a scaryword, OSHA, right?
Um we're all pretty familiarwith OSHA's role in regulating
workplace violence, particularlyin the healthcare space.
(06:01):
But could you elaborate for ourlisteners today a little bit
more about any specific federalor importantly state OSHA plans
that maybe some healthcareemployers need to be aware of
and thinking about?
SPEAKER_00 (06:14):
Yeah, I um I have partners in some of our other
offices that could speak moreeloquently on various state OSHA
plans, but at the at the federallevel, um I can tell you that
OSHA has certainly recognized umworkplace violence as a
recognized hazard in thehealthcare industry.
So it's been on their radar formany, many years.
(06:36):
They have never published aspecific standard that hospitals
or healthcare employers mustcomply with.
So instead, they uh enforce uhthis issue through their
catch-all, through the generalduty clause, which essentially
just says covered employers mustprovide a workplace that's free
of known hazards that couldcause death or serious harm to
(07:00):
employees.
Um, OSHA has also many years agopublished voluntary guidelines
since they don't have thatspecific standard yet.
And those voluntary guidelinesare specific to addressing
workplace violence in thehealthcare and the social
services sectors.
They include a whole host ofbest practices and other
(07:20):
recommendations on hazardprevention and control.
And I know OSHA has beenconsidering publishing a
specific standard for manyyears.
Um, but it's an agency, as youknow, Sarah, they they work at a
somewhat glacial pace.
So sometimes we hear that astandard is coming, and
sometimes they'll even get boldand confident and say it's
coming by October of next year,but but too often for a variety
(07:44):
of reasons, those deadlinesdon't seem to be met.
So in the meantime, I I thinkthe the best we can do, at least
at the federal level, uh, is tomake sure that you're following,
following their voluntaryguidelines, which are, which are
pretty good, I would say.
SPEAKER_02 (07:58):
Yeah, I think we all just had flashbacks to that OSHA
ETS and whether it was going tobe permanent.
Um yeah, I mean, and I thinkthat's great advice, right?
Like even though it's notmandatory, those are the things
that OSHA investigators aregonna be looking at.
They're looking at theirguidance when they're coming in
and assessing whether or not ourhealthcare clients are
(08:19):
compliant.
Um we certainly are, you know,when I think workplace violent,
I think OSHA front of mind.
But other than OSHA, are thereother regulatory bodies that
govern workplace violence issuesin healthcare that you think
some of our legislators may notbe as uh front of mind of?
SPEAKER_00 (08:38):
Yeah, well, well, one agency um that uh is
concerned about workplaceviolence in healthcare is CMS,
the Centers for Medicare andMedicaid Services.
So they have jurisdiction overhospitals and healthcare
entities that participate inMedicare, right?
And they have published ahandful of what they call
conditions of participation orCOPs that specifically address
(09:02):
things like uh patients' rightto receive uh care in a safe
facility, right?
Or um others have uh there's Ithink I believe there's a COP
that specifically requires thehospital to prepare an emergency
preparedness plan that containsspecific risk assessments and
other types of trainingrequirements of staff and
(09:24):
volunteers on what theirpreparedness plan says and does
and how to implement it.
Uh I know CMS has proactivelyreached out to state survey
agency directors and and kind ofleaned on them to issue
citations to hospitals that uhare failing to meet these
regulatory requirements.
Um CMS is definitely concernedabout this.
(09:46):
The the Department of Health andHuman Resources, uh I'm sorry,
Health and Human Services, HHS,they're also interested in this
topic.
Uh you probably saw, I think itwas last spring, they they
posted a specific bulletin thataddressed workplace health,
workplace violence inhealthcare, and that too
contained specificrecommendations that they wanted
(10:08):
to see implemented.
And that was some of the samethings on the other list that
we've talked about,strengthening security
protocols, uh enhancingemergency preparedness plans, uh
supporting your workforce withmental health or counseling or
their psychological support forthose that may have been victims
(10:28):
of workplace violence, or maybeeven if they're not their
victims, but they've they'vewitnessed it, that can be a
traumatizing event for them.
Uh and then also, and this is akind of an important factor in
how we improve things in thisspace, is encouraging policies
and reporting procedures whereemployees feel comfortable
reporting incidents of violenceor threats of violence.
(10:52):
Uh I fear that that too oftenhealthcare workers, again,
they're they're heroes, right?
And and they know and theyunderstand that they are
unfortunately going to besubjected to some bad behavior
from patients and family membersand visitors sometimes.
And I'm afraid that there's aculture out there that they're
just supposed to endure that andand not report it for fear of
(11:13):
being known as a troublemaker,or maybe even because they fear
retaliation, like they might beterminated or or lose favor with
their manager or department headfor having reported it.
And frankly, that that'ssomething that really needs to
be addressed.
That's just not where you wantto be or where any hospital or
healthcare entity wants to be,where their employees are
fearful about reporting reallyany kind of non-compliant
(11:37):
behavior, uh, not the least ofwhich is workplace violence
issues.
SPEAKER_02 (11:41):
Yeah, I think it's really interesting because, you
know, even we don't think a lotabout conditions of
participation and workplaceviolence, right?
But they are weaved throughoutthere and the potential, you
know, with a CMS uh surveyor onsite looking at these issues in
a way that we wouldn't havethought of.
I know in terms of employeeengagement, right, we're seeing
(12:04):
um it's not necessarily new, butwe're seeing state legislation
really focusing on likeworkplace violence
subcommittees, right?
Where employees, non-managersneed to be part of the solution.
And some states requirestatutory participation.
Uh, a lot of uh union-driveninitiatives there, I think.
But right, we're seeing um, youknow, a lot of various ways to
(12:28):
help address that criticalproblem that is multifaceted.
Um, along those lines, uh, Iwon't ask you to tell us every
single state, John, but I knowwe are continue.
I I saw even today, right, outof Massachusetts, um, we're
continuing to see an increase instates creating workplace
violence laws specific to thehealthcare industry.
(12:50):
Uh, today uh there was a stepfurther in Massachusetts where
the House, I think, passed somelegislation around workplace
violence uh protection specificto our industry.
And those can take a lot ofdifferent forms.
Um, can you just tell us alittle bit about some of the key
takeaways of the trends we'reseeing in the states that are
(13:11):
specifically regulating theseissues for healthcare employers?
SPEAKER_00 (13:15):
Yeah, that's a good question.
I this is another one of thoseareas where states seem to be
picking up where Congress hasmaybe been unwilling or unable
to pass federal legislation onthis issue.
Uh, I know we both represent alot of healthcare clients that
are in multi-state environments,and that becomes a very
challenging um thing to have toknow and comply with all kinds
(13:37):
of different standards.
That the example that comes topof mind for me is you know, all
of the different paid sick leavelaws and not just states, but
cities and municipalities, andnavigating all those is
certainly a challenge for ourfor our clients.
And the same is true with uhworkplace violence and
healthcare legislation.
I I think you've seen um avariety of different approaches.
(14:01):
You know, states are supposed tobe the laboratories of
democracy, uh, right?
Um, some of them are using moreof a carrot approach.
I think Colorado has aninteresting law where they they
passed legislation that's aimedat um tying reimbursement rates
for hospitals to thosehospitals' ability to achieve
certain performance metricsrelated to workplace safety.
(14:23):
I think that's a realinteresting way to address this.
And then you'll see uh you'llsee the stick method as well.
I know Michigan has passed alaw.
Uh it's not aimed at hospitals,it's really aimed at the public,
and it's it's they've amendedtheir penal code by essentially
doubling the financial pines, uhfines or penalties that someone
(14:43):
who harasses or assaults ahealthcare worker will be
subjected to.
This is similar to what we haveseen in the airline industry,
where you know, if you assaultsomeone off the street, you
know, you're subject to certainpenalties.
If you assault an airlineworker, uh um, then those
penalties are much, much worse.
Um so Michigan's kind offollowed the stick approach
(15:03):
there.
Uh, I believe Maryland passed alaw that was more geared around
just raising public awarenessabout the inherent um safety
risks in workplace, uh inhealthcare workplaces.
Um, that can be a way to kind ofdrive up public support for
legislation.
And then a number of states havepassed laws that have really
(15:24):
codified some of the um some ofthe uh things in OSHA's
voluntary guidelines, likeconducting specific um hazard
analyses and and providingsecurity risk assessments that
are specific to yourorganization and then developing
corresponding security plans toaddress those specifically
(15:45):
identified risks.
I know a number of states havehave gone down that path, which
to me seems like a prettyproductive law to pass.
SPEAKER_02 (15:53):
I think it's really interesting because all of what
we're talking about is sofocused on workplace violence,
but it goes hand in hand withemployee engagement, right?
When you look at the states thatare passing these laws, you'll
often see SEIU 1199, right?
Some of the healthcare unionsreally involved.
And I encourage clients, and Ithink you do too, John, right,
(16:17):
to really view it as a proactiveemployee engagement tool.
It's not just about keeping theworkplace patients and employees
safe.
Um, it's also a really greattool.
So for those multi-state clientswho may not have to comply with,
you know, a certain state law inanother state they operate in,
it's a really proactive employeeengagement tool that I think we
(16:39):
don't often talk about whenwe're talking about workplace
violence across the spectrum ofum employment issues in the
workforce.
So I think it's uh it'sinteresting 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 umsome of the legal risks, and
critically you touched upon it alittle bit, but penalties that
(17:03):
arise um when employers are notcompliant with all these various
regulatory obligations.
You talked about sort ofconditions of participation,
right?
Like money, right?
We all get a little scared inour industry.
Can you tell us a little bitmore about those implications?
SPEAKER_00 (17:21):
Yeah, so for those conditions of or participation,
I mean, ultimately uh whenyou're if you're a hospital
that's being subjected to a to astate survey, if you get a
citation, generally you have anopportunity to correct um
whatever has been identifiedthat you you were cited for.
But if you're a repeat offenderor just refuse to uh cooperate
(17:42):
or comply with the um with theCOPs or or whatever
accreditation standards thatmight apply to you, then
ultimately your license, thehospital's license, its ability
to do business could could be onthe line.
Um certainly with OSHA, OSHA hasthe authority to assess uh fines
and and penalties uh if theyfind those uh entities, worker
(18:04):
uh employers that are violating,again, it would right now it
would just be the general dutyclause.
There have been some lawsuitschallenging OSHA's authority to
do that, uh, but OSHA iscertainly confident that it has
that authority.
And those penalties can becomesubstantial, particularly if if
you're a repeat offender.
Um, those numbers can get prettypretty scary.
Uh and then there are somedownstream effects also to
(18:27):
having been cited by by OSHA,uh, having that on your record,
because that could lead to anincrease in your insurance rates
or premiums for your workers'compensation policies or
possibly other general liabilitypolicies.
Uh OSHA findings can and areused uh as evidence of
negligence in private lawsuits.
(18:47):
You could find yourself sued fornegligent hiring or negligent
retention or negligentcredentialing of providers, uh,
where essentially uh theplaintiff is arguing that you
failed to take reasonable stepsto uh to keep an employee or a
patient or a visitor safe.
That's a significant issue.
Um, interestingly, because we'retalking about health care, uh
(19:09):
there's a federal statute calledMTALA, the Emergency Medical
Treatment Labor Act, that thatworks its way into this analysis
as well.
Um, because we know that thatsome of the violence is caused
by patients and the violence isdriven by the underlying medical
condition, right?
Someone comes in and they mightbe intoxicated or suffering from
(19:30):
withdrawal, or maybe they havesome psychological something
going on with them and they'reacting out in violent ways.
And Mtala doesn't, it prohibitsyou from just kicking them out
or calling the cops and saying,take take this troublesome
person away.
Um you have to provide a medicalscreen, you have to uh stabilize
(19:50):
them or or transfer them.
And and failure to do that,there's significant penalties
there, both for the hospital andthe provider.
Um, civil monetary penalties areavailable.
And then both could be excludedfrom participation in federal
healthcare programs, which isthe ultimate hammer in the
industry that you and I work in.
So, you know, those are thoseare some of the legal risks.
(20:13):
You mentioned, you know, a bigone a couple of times, the union
organizing.
That's a big practical riskbecause you talk about giving a
union something to talk aboutduring an organizing campaign.
Hey, your employer is failing tokeep you safe, or hey, your your
employer will retaliate you ifyou say if you speak out too
much about unsafe conditions orstaffing ratios or whatever it
(20:36):
may be.
We're here to protect you.
You need us to represent youbecause your employer isn't
doing enough on their own.
And that's certainly a realconcern, along with morale
issues and retention andabsenteeism and all these
byproducts of workplace violenceincidents that are that are
really kind of a scary thing forour hospital clients.
SPEAKER_02 (20:59):
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 achoice, right?
We have to treat this patient.
So it is, again, a realopportunity for our healthcare
clients to think across thespectrum of all those issues
when navigating it.
Um all right.
(21:20):
So tell us what's on thehorizon, John.
Uh, workplace violencelegislation, what do we think is
coming down the pike next?
SPEAKER_00 (21:28):
Well, I think you're going to see more and more
states kind of jump on board.
Um that that's kind of asomething that happens
sometimes.
A lot of states borrow fromother states that have passed
laws on all kinds of different,you know, employment-related
concepts, but this this is oneof those.
So I think we'll see more statelegislation.
At the federal level, I don'tknow.
I I mean, we've got a couple ofpieces of legislation that that
(21:52):
have been proposed in the past.
Uh, in April of this year, therewas a law called the Workplace
Violence Prevention forHealthcare and Social Services
Workers Act.
Um, that's a law that did a fewthings, but primarily it would
have required OSHA to publish aspecific standard on this issue
and given them a pretty tightdeadline to do so.
(22:12):
I think maybe a year to publisha temporary standard, and then
the the final rule standard, thepermanent standard would have to
follow within two or three yearsafter that.
Um again, that was proposed, buthas not yet been passed.
Uh and then there's another law,the Safe Healthcare Workers Act.
That's similar to that law inMichigan that I mentioned, uh,
kind of tracks the airlineindustry approach.
(22:34):
Um that was proposed in 2023 andagain in 2024.
Again, I don't think it ever gotout of committee, uh, never get
a vote on that.
But but the idea is it wouldhave provided more protection
for healthcare workers from thepublic uh when they are uh when
they are subjected to assaultsor intimidating work uh I'm
(22:55):
sorry, intimidating behaviordirected their way, which again
happens so often in in thesevery stressful environments.
SPEAKER_02 (23:04):
Yeah, definitely.
Well, this is uh you can tellI'm a true healthcare labor and
employment management siteattorney, because I could talk
about this forever, but um, weare at the end, and I do have
one final question.
You deal with this all the timewith healthcare clients, right?
So, what are some of the topaction items our listeners can
(23:24):
take away from our discussion tokind of think about how to
protect themselves against allof these risks and critically
keep both our patients and ouremployees safe?
SPEAKER_00 (23:35):
Yeah, you know, I think you've kind of hit the
nail on the head a couple oftimes with your comments about
employee engagement.
So I I think my first piece ofadvice um would be that
employers are never disserved bygetting their employees more
engaged in things.
And this is one in particularbecause it's their health and
safety that's on the line,right?
This is one in particular, Ithink, where where healthcare
(23:58):
employers need to really get outin front of this issue and make
it a top priority and make suretheir employees see that it's a
it's a top priority.
Executive leadership needs to bevisible regarding this issue and
reaching out to um to employeesto get their ideas and hear
their concerns because they'rethe ones that are going to be
(24:18):
able to tell you, you know, andidentify the risks that they're
most concerned about.
And not speculative, right?
I mean, that they're concernedabout these risks because
they've been subjected to them.
Uh so establishing that thatculture of safety and
establishing just a zerotolerance.
I know it's a cliche, but Ithink it's applicable to this
situation, zero tolerance forany violence or any threats of
(24:41):
violence in your workforce.
And your employees are going tobe uh very receptive to that.
Um I guess the the last thing Iwould say is I I would challenge
healthcare executives and theC-suite to try to focus on the
benefits of prioritizing safetyin their workplaces.
I mean, of course, riskmitigation with all the laws and
(25:03):
OSHA surveys and things likethat that we've talked about as
part of that.
But there's a patient care sideof this as well.
Healthcare workers, theaccreditation agencies know
this, right?
Healthcare workers that feelsafe and secure at work provide
better patient care.
Uh so it's going to lead tobetter patient outcomes, better
patient satisfaction scores,which is top of mind for many
(25:26):
healthcare executives.
Uh, it's gonna enhance employeemorale, which certainly helps
with retention, and that's moreimportant than it's ever been
with the workforce shortagesthat we're seeing and the
projections in in healthcarethat are really scary.
Uh it's gonna take away some ofthose union organizing arguments
for those entities that don'thave unions and and wanna don't
(25:47):
want unions.
Um, all for all of thesereasons, I think there's really
no reason not to make this a toppriority.
SPEAKER_02 (25:55):
I love the business case, right?
Like when in doubt after thebusiness case.
Well, John, I really can't thankyou enough on behalf of the AGLA
Labor and Employment PracticeGroup.
It's been a real pleasure.
So thank you so much for yourtime.
SPEAKER_00 (26:07):
Thank you, Sarah.
I've really enjoyed talking toyou about this.
SPEAKER_01 (26:15):
If you enjoyed this episode, be sure to subscribe to
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