Legal Overview

This paper reviews the 4 criteria established by OSHA that determine when the organization may take action against an employer for a breach of the act. In particular, we review the criteria in the context of employees who work alone, and who may not be able to easily call for help when they find themselves in a potentially dangerous situation.

The paper should be helpful in determining the level of risk faced by employees who work alone and suggest ways in which the risks can be mitigated in the context of OSHA requirements.

The author, Vidette Humphries, is a qualified safety auditor and has worked in the area of lone worker safety for almost 20 years. During that time, she has interviewed and trained thousands of social workers, home health aides and other professionals who regularly work alone, including many who have been victims of violence in their place of work.

The Occupational Safety and Health Act of 1970 is a US labor law governing occupational health and safety in the public and private sectors in the United States.

The Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their workers with “a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm”

The Act created the organizations known as the Occupational Safety and Health Administration (OSHA) and the National Institute for Occupational Safety and Health (NIOSH), both of which have responsibility for monitoring and enforcing safety and health in the workplace.

How does working alone relate to the General Duty clause?

Working alone is widely recognized as carrying a significantly higher level of risk compared to the average worker. What may be a relatively harmless encounter with an angry client in an office environment can have a much more serious effect if the worker is alone in the client’s home and is unable to call for help.

Let’s consider first of all OSHA’s four criteria and see how they might apply in a working alone context:

1. There must be a hazard

Working alone presents hazards that are not present when people work in pairs or groups. The hazards will vary depending on the worker’s duties, but in all cases, they are likely significantly aggravated by the fact that a person working alone – a “lone worker” – has much less opportunity to call for help, or for their situation to be noticed by co-workers.

At the highest risk level is an actual physical assault which could result in injury or even death. An assault could happen in many different circumstances and environments, and some of the most common are when a worker is dealing with a particularly sensitive issue. In its guidance, OSHA notes that pain, devastating prognoses, unfamiliar surroundings, mind- and mood-altering medications and drugs, and disease progression can cause agitation and violent behaviors. Similarly, dealing with incidents of adult abuse or perhaps discussing the removal of a child from a foster home can be triggers for threats and violence.

In summary it is clear to that working alone can present hazards that would qualify under the General Duty clause and could expose an employer to sanctions under the Act.

2. It must be a recognized hazard

i.e., the employer knew or should have known about the hazard, the hazard is obvious, or the hazard is a recognized one within the industry.

It is highly unlikely that an employer could claim they were unaware of the risks associated with working alone as a social worker, for example, or as a home-healthcare worker. There are many sources of information and news reports that make it clear that the risk of violence is elevated for people who work alone in the community. Indeed, in our discussions with over 600 human service agencies, 100% of respondents claimed awareness that their employees could be exposed to threats and to violent incidents.

It seems inevitable then that the risk of threats and attacks against people who work alone is a recognized hazard, and that employers can be reasonably expected to take steps to mitigate it.

3. The hazard could cause serious injury or death

Unfortunately, this criteria is all too easily met in social services environments. The last few years alone demonstrate that social workers, home-healthcare workers and other outreach and social services workers can and do lose their lives at the hands of violent clients and patients. These incidents are not common, but neither are they unheard of, with approximately 6 deaths in the last three years. In every case the incident involved a client or patient who was not expected to react with violence.

Serious injuries, which are categorized as injuries requiring days away from work, are numbered in their thousands every year, and it is estimated that only one-third to one-half of violent behaviors and threats are reported. The Federal Bureau of Statistics published an analysis of the risks faced by different providers of social services:

4. The hazard must be correctable

OSHA recognizes not all hazards are correctable

Is the risk of verbal or physical assault correctable? Absolutely. OSHA say that in most workplaces where risk factors can be identified, the risk of assault can be prevented or minimized if employers take appropriate precautions.

OSHA advise that one of the best protections employers can offer their workers is to establish a zero-tolerance policy toward workplace violence. They suggest that the policy covers all workers, patients, clients, visitors, contractors, and anyone else who may come into contact with employees.

OSHA also believes that a professionally written and implemented Workplace Violence Prevention Program, combined with engineering controls, administrative controls and training, can reduce the incidence of workplace violence. They think it is critical to ensure that all workers know the policy and understand that all claims of workplace violence will be investigated and remedied promptly.

They publish guidance on developing a violence prevention programme on their website.  A pdf guide can be downloaded here https://www.osha.gov/sites/default/files/publications/osha3148.pdf

State enacted laws

To support Section 5(a)(1), a number of states have enacted laws that require employers of healthcare and/or social assistance workers to establish a plan or program to protect those workers from workplace violence. States include California, Connecticut, Illinois, Maine, Maryland, New Jersey, New York, Oregon, and Washington.

State laws differ widely in definitions of workplace violence, requirements and scopes of facilities covered. For example, Washington and New Jersey cover the healthcare sector broadly, while Maine covers only hospitals and Illinois covers only developmental disabilities and mental health centers.

Eight state laws require worksite risk assessments to identify hazards that may lead to violent incidents; however, not all state regulations specify how to conduct a risk assessment. Only Maine does not have a requirement for a risk assessment. All the states but Maine also require violence prevention training, although requirements differ in frequency and format of training, as well as the occupations of the employees required to be trained. All nine states require healthcare employers to record incidents of violence against workers.

Some laws apply specifically to healthcare settings (e.g., Washington Labor and Industries’ RCW 49.19), while others apply more broadly to cover additional industries or sectors. New York is the only state that operates its own OSHA program that has a standard that specifically requires a violence prevention program; however, coverage is limited to public employees. California law requires hospitals to conduct security and safety assessments and to use the assessment to develop and update a security plan (California Health and Safety Code Section 1257.7)

As recent as April 2021, the house passed H.R 1195, a bill to introduce workplace violence protection for health care and social service workers.

How can GuardianMPS help?

The GuardianMPS system, monitoring and training can help you control and minimize the impact of the hazards your lone workers face. Guardian is designed to allow a worker who gets into difficulty to raise a discrete alarm with an immediate connection to an Alarm Monitoring Centre.  Highly trained security personnel are there to respond 24 hours a day.  At the touch of a button on the Guardian app or device the alarm center agents can hear what is going on, get a GPS location for the person, along with any other registered information such as employer name, manager name, emergency contact number, blood type, next-of-kin, etc.

In an emergency, the alarm agent can dispatch the local police department straight to the victim within minutes.    Guardian also allows workers to check-in and out of their tasks for a specific period of time.  If they get into difficulty and cannot raise an alarm, the system initiates an automated protocol to verify their safety when they don’t check out.  In deploying the system a range of additional training is available that can further prepare the workers to handle or avoid a threatening situation.

A GuardianMPS deployment provides workers with reassurance that they can quickly and discretely get help when they need to, without aggravating an already volatile situation.

Employers can demonstrate they are seriously focused on controlling the risks associated with workplace violence and other hazards. OSHA recognizes that some of these hazards cannot be eliminated, but an investment in a comprehensive safety system is likely to be recognized as a meaningful intention to support the workers and minimize as far as possible, the risks involved.

Sources:

https://en.wikipedia.org/wiki/Occupational_Safety_and_Health_Act_(United_States)

https://www.bjs.gov/index.cfm?ty=pbdetail&iid=4615

https://www.osha.gov/SLTC/healthcarefacilities/violence.html

OSHA has developed a Workplace Violence Safety and Health Topics Page with information that can help you properly evaluate your workplace and prepare to prevent or minimize the likelihood of violence at your workplace. The agency has also developed an OSHA Instruction CPL 02-01-058, Enforcement Procedures and Scheduling for Occupational Exposure to Workplace Violence. This instruction provides policy guidance and procedures to be followed by OSHA officials who conduct inspections and issue citations related to occupational exposure to workplace violence.