Hospital successfully fends off OSHA citation

Hospital Safety Insider, June 15, 2017

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Feds had challenged medical center's workplace violence prevention program

More than 18 months after being cited by OSHA for allegedly failing to guard adequately against workplace violence, one of the largest public hospitals in the United States is claiming victory. Bergen Regional Medical Center (BRMC) in Paramus, N.J., defended its program and recently reached an agreement with federal officials, who dismissed the citation.

“The Medical Center has vehemently disagreed with OSHA’s allegation from the outset and availed itself of the contest process employers have to better educate OSHA about facts related to alleged violations,” BRMC spokeswoman Donnalee Corrieri, MHA, vice president of marketing and strategic development, said in an email.

But not everyone is happy about the agreement. Jordan Barab, MA, who served as deputy assistant OSHA secretary under former President Barack Obama, drafted a 3,000-word blog post last week critical of how the litigation was resolved.

“What we have here is a cave-in by the Department of Labor who agreed to a weak settlement, rescued somewhat by a good OSHA press release that more accurately describes the serious ongoing problems at the hospital,” Barab wrote.

While there is currently no workplace violence prevention standard at the federal level, OSHA officials can still cite healthcare employers for failing to protect their workers from “recognized hazards” as required by the OSH Act’s General Duty Clause. To do so, officials must answer four questions:

  1. Did the employer fail to keep its workplace free of a foreseeable workplace violence hazard?
  2. Was the hazard explicitly recognized or recognized in a high-risk industry?
  3. Was the hazard causing or likely to cause death or serious physical harm?
  4. Was there a feasible and useful means by which to correct the hazard?

Answering all four questions in the affirmative would tend to support an alleged General Duty Clause violation. If officials answer fewer than four questions in the affirmative, they can still issue a hazard alert letter (HAL)—that happened to BRMC in 2014, when OSHA wrote to the hospital concerned about a number of reported incidents. (Workers reported at least 45 violent incidents in 2013 and at least 10 more during the first four months of 2014, the HAL stated.)

In 2015, OSHA accused BRMC of failing to heed the warning. So it issued a citation under the General Duty Clause and proposed a $7,000 fine.

Corrieri said the hospital then embarked on a months-long discovery process, produced thousands of pages of documents pertaining to its workplace violence prevention program, made key hospital personnel available for interviews with OSHA, and called upon the services of a third-party expert to assess the hospital’s program and affirm its adequacy under oath.

“After considering all of the evidence, which OSHA did not have the benefit of when it [made] its initial allegation, OSHA obviously concluded that the initial citation was misplaced, and agreed to withdraw the citation related to workplace violence in its entirety,” Corrieri wrote.

Barab, however, described the hospital’s defensive tactics as a cold effort to improve the organization’s business position at the expense of worker safety.

“Why did BRMC put up such a huge fight against a tiny $7,000 workplace violence citation?” Barab wrote. “Why was it willing to take the case to court despite the fact that the legal process would cost many times more than the paltry $7,000 penalty? Probably because the hospital, which … is owned by Bergen County, is actually leased to Bergen Regional Medical Center LP, a private operator. That lease runs out at the end of September and the company wants to renew it.”

The Bergen County Record reports that BRMC, which has held the county’s hospital contract for two decades, is among several bidders vying for the renewal set for October 1.
Barab went on to accuse BRMC of trying to revise history.

“A settlement that withdraws the workplace violence citation and states that the hospital is already doing what it should be doing is highly valuable to BRMC in its campaign to keep the contract,” he wrote. “But the hospital’s contention that its workplace violence prevention program ‘has once again been found to be compliant’ is false.”

The hospital countered that Barab’s case is built on a fundamentally flawed foundation.

“He is basing his opinions on the initial allegations and the brief, under-sourced inspection OSHA conducted back in 2015, as opposed to the facts that came out during the course of the litigation,” Corrieri wrote, noting that BRMC has continuously sought to improve its already-adequate workplace violence prevention program.

When the hospital states that its program “has once again been found to be compliant,” it refers not only to assessments by federal OSHA inspectors but to a number of other regulators as well, including the New Jersey Department of Health and The Joint Commission, Corrieri added.

“Unlike OSHA, the New Jersey Department of Health has a specific workplace violence prevention standard against which it evaluates hospitals in the state, and OSHA actually identified this standard as a resource the Medical Center should embrace to improve its [workplace violence prevention program] in 2014,” Corrieri wrote.

Federal officials have been looking to states like New Jersey and California for input and potential models on how regulatory bodies might protect healthcare workers nationwide from violence, as reported last month in HCPro’s Briefings on Hospital Safety. The idea, which could empower OSHA to issue citations under a specific workplace violence prevention standard rather than the General Duty Clause, has garnered a considerable amount of favorable feedback.

“A workplace violence standard would not only better protect workers, but it would also provide more certainty to managers of health care institutions,” Barab wrote. For the time being, however, the resolution of BRMC’s case could have a “demoralizing effect” on workers and signify that OSHA is increasingly hesitant to pursue such citations, he added.

“Workplace violence cases are not easy to investigate and often require some political will from the top to stand up to stubborn employers like BRMC and the top notch attorneys they can buy,” Barab wrote. “Will OSHA’s new leadership be strong advocates for workers threatened by violence? Will they support and encourage OSHA inspectors to take on these difficult, but important cases?”

Corrieri contended that overly idealistic critics fail to understand what success stories look like in the real world.

“Mr. Barab’s ill-informed commentary seems to stem from his view that even a single instance of workplace violence means an employer’s [workplace violence prevention program] is somehow insufficient,” Corrieri added. “However, OSHA’s [workplace violence] Guidelines for healthcare acknowledge that ‘not every incident can be prevented.’ The reality is, the Medical Center consistently experiences fewer incidents of violence than its peer medical systems in New Jersey and nationally.”

The stipulated agreement—a copy of which must be posted at the hospital and available to employees upon request—requires BRMC to permit OSHA inspections of its facilities without a warrant or subpoena through September 30, the day its current contract expires.

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