Two cases before the Tenth Circuit Court of Appeals could limit the Occupational Safety and Health Administration's (OSHA) ability to set limits on its failure to prevent workplace violence. Both cases involve psychiatric hospitals where employees reported patient assaults, and OSHA resulted in citations under the Occupational Safety and Health (OSH) General Services Clause, which requires employers to provide workplaces “free from recognized hazards” likely to result in death or serious physical harm.
The cases brought by the hospitals to the Tenth Circuit are part of a trend by the Occupational and Health Review Commission (OSHRC) upholding citations for general service clauses in workplace violence cases. In particular, OSHRC has consistently found that workplace violence is a foreseeable hazard for which there are viable mitigation measures that would significantly reduce the risk.
Quick hits
- Two cases before the Tenth Circuit Court of Appeals could limit OSHA's ability to cite employers for failing to prevent workplace violence, particularly at psychiatric hospitals where employees have reported patient attacks.
- OSHRC has consistently upheld General Service Clause citations in workplace violence cases, in contrast to its decisions in heat cases, where feasible mitigation measures have been more difficult.
- Employers are closely monitoring upcoming Tenth Circuit decisions in cases involving workplace violence that will either uphold OSHRC precedent or impose stricter OSHA burden of proof requirements and influence future workplace safety enforcement.
This is in contrast to how OSHA has generated heat stress/heat-related illness general citations in general service clauses. In Labor Secretary v. United States Postal Servicedecided in 2023, OSHRC cleared citations, finding that the Secretary had not determined that feasible and effective means existed to avoid the hazard.
In Labor of Labor v. Ah Sturgill Roofing Inc.OSHRC, ruling in 2019, vacated a citation and concluded that it was improper to define sufficient notice of “excessive heat” to the employer. The lack of a clear hazardous threshold for all workers, given the many variables such as humidity, wind, workload, personal protective equipment (PPE) and acclimatization, as well as the physical characteristics of each employee, made heat a difficult hazard to define according to the general levy. (OSHA provides guidance on exposure to outdoor and indoor heat hazards for employers with temporary employees.)
The contrast between workplace violence prevention and heat-related cases in relation to the general service clause lies in workplace violence, which is considered by the Commission to be a well-recognized danger in certain sectors such as healthcare, with feasible, concrete and well-designed reporting measures. Heat is far more complicated and the feasibility of mitigation measures is very context specific (as detailed above), often making it more difficult for the Secretary to demonstrate.
Recent workplace violence prevention enforcement decisions in patient violence cases provide important lessons on how to address OSHA's federal General Services Clause with warmth. In workplace violence cases, OSHA's success has depended on its ability to clearly establish the four required elements of the General Service Clause:
- Hazard detection: In cases of workplace violence, OSHA prevailed when it was shown that the risk of violence in the industry was usually recognized and foreseeable based on things like prior incidents, employee reports, or industry guidelines. Similarly, for heat hazards, OSHA must demonstrate that the employer or industry recognizes the specific heat hazard under actual working conditions, not just that heat in general can be dangerous.
- Exposure to employees: OSHA must demonstrate that employees were actually exposed to the recognized hazard. In cases of workplace violence, this often involves evidence that employees worked in environments with a history of violence. For heat, OSHA must demonstrate that employees were exposed to hazardous heat for a sufficient time and intensity, taking into account a variety of factors, including workload, PPE, and acclimatization.
- Likelihood of death or serious physical harm: In both workplace violence and heat-related cases, OSHA must demonstrate that the hazard would likely cause death or serious physical harm. In cases of workplace violence, this is often supported by evidence of previous incidents or threats. In heat-related cases, OSHA must provide evidence, such as medical records or expert testimony, that the conditions pose a real risk of heat-related illness or death.
- Feasible and effective mitigation: In cases of workplace violence, OSHRC has determined that a process-based approach to viable methods of mitigation includes written prevention programs, training, communication and reporting protocols, and staffing adjustments. In heat-related cases, OSHA must suggest controls such as rest, hydration, shade, or acclimatization that are practical for the specific job site and proven to reduce risk.
Next Steps
Employers are awaiting the Tenth Circuit's rulings and analysis of recent cases raised by health care facilities. Will it uphold OSHRC precedent-finding that OSHA met its burden of proof under the General Services Clause, or will it follow OSHRC's trend in heat-related cases, questioning the feasibility of measuring measures and increasing OSHA's burden in litigation? Both findings will assist employers in their defense of such cases and in their efforts to prevent workplace violence.