Posted with permission from Confined Space, a newsletter of workplace safety and labor issues.

Which statement below represents reality?

This one?

NOTICE TO EMPLOYEES OF BRMC WORKPLACE VIOLENCE PREVENTION PLAN
May 22,2017

Bergen Regional Medical Center (BRMC) is proud to report that our Workplace Violence Prevention Plan (WPPP) has once again been found to be compliant, as the Occupational Safety and Health Administration (OSHA) has agreed in a settlement to completely withdraw the citation issued to BRMC last year related to our WPPP. (emphasis added)

Or this one?

OSHA, New Jersey medical center reach agreement on violence prevention
June 1, 2017

The U.S. Department of Labor’s Occupational Safety and Health Administration and one of the nation’s largest public hospitals have resolved litigation by reaching an agreement that requires the center to enhance its efforts to prevent violence in the workplace….A February 2015 agency inspection found BRMC’s workplace violence program to be inadequate in that workplace violence hazards had not been addressed effectively, and in that the workers’ safety and health continued to be jeopardized due to exposure to workplace violence. “This settlement holds Bergen Regional Medical Center L.P. accountable for ensuring it has an effective workplace violence prevention program that makes employee safety and health paramount,” said Robert Kulick, OSHA regional administrator in New York. (emphasis added.)

The first statement was issued by the Bergen Regional Medical Center (BRMC) and the second statement was issued last Thursday by OSHA’s Region II.

So which is it? Does BRMC have an “inadequate” workplace violence program that needs to be “enhanced” or does BRMC have a program that has “once again been found to be compliant” with …. something — probably OSHA’s General Duty Clause, which requires employers to provide a safe workplace?

Background

BRMC is one of New Jersey’s largest licensed nursing homes and one of the nation’s largest hospitals, providing long-term, behavioral health and acute care. The hospital is represented by the Health Professionals and Allied Employees (HPAE), an affiliate of the American Federation of Teachers.

In September, 2015, OSHA issued two citations against BRMC, a $6,600″repeat” citation for failure to keep accurate records and a $7,000 General Duty Clause violation for failing to protect workers against assaults and threats from patients and visitors. The citation, which followed a worker complaint, noted eight specific incidents of assaults against workers, “including one in which a nurse suffered a laceration and bruises attempting to stop an attack on a patient.” In addition, “employees reported incidents that involved patients barricading workers in a room, threatening them and exposing them to bloodborne pathogens. Several employees experienced being bit, punched, kicked and threatened by patients.”

OSHA’s General Duty Clause, paragraph 5(a)(1) of the Occupational Safety and Health Act, requires employers to maintain a workplace  “free from recognized hazards that were causing or likely to cause death or serious physical harm to employees,” and is used by OSHA to enforce safe working conditions where there is no specific OSHA standard.

The 2016 citation followed a “Hazard Alert Letter” (HAL) sent in 2014 warning the hospital that “you have not developed or implemented adequate measures to protect workers from assaults at your workplace” and made several recommendations.  The 2015 inspection found that the hospital had not acted adequately on the recommendations in the HAL. Hazard Alert Letters are issued by OSHA when serious problems are identified, but they aren’t enough to meet the legal criteria of the General Duty Clause.

Assaults on workers continued at the institution after the OSHA visit with workers reporting in May 2016 “that in one three-hour span last December, law enforcement recorded four assaults that left two patients bleeding, an aide requiring X-rays and two guards with bite marks on their arms.”

The settlement announced on June 1 withdraws the workplace violence citation and leaves only the recordkeeping violation which was increased to $14,000. The settlement also describes a workplace violence program that BRMC had allegedly already implemented and would continue to implement. BRMC also allows OSHA to enter the facility to verify compliance with the settlement until September 30, 2017.

So, what’s going on?

When an employer contests a citation, OSHA has three choices: withdraw the citation, reach a settlement (which sometimes withdraws one or more citations in return for actions by the employer that go beyond simple compliance), or pursue the case through a lengthy and costly legal process.

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.

Note that I say a “Department of Labor” cave-in, and not just an OSHA cave-in. That’s because although OSHA issued a good, well documented citation, but BRMC contested and refused to accept any workplace violence citation. Sources report that Department of Labor Solicitors (SOL), who act as OSHA’s lawyers, forced the agency to withdraw the violence citation before it went to court .  This surrender occurred despite the fact that SOL had approved the initial citation and OSHA had commissioned a report by an outside expert, which, according to those who saw the report, strongly upheld the substance of the citation.

How can SOL force OSHA to withdraw a citation when technically, OSHA is SOL’s client? In reality, no workplace violence citation, no settlement and no decision to move through the legal process proceeds without SOL approval. In some cases, where there is strong disagreement between SOL and OSHA in the regions, the final decision may be elevated to the national office.

Why did BRMC put up such a huge fight against a tiny $7,000 workplace violence citation? 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 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. As the Bergen County Register suggests, having a serious workplace violence citation on the books might not look to good when the decision is made next month to choose a new hospital operator:

What caused SOL to back off when it was so clear that BRMC had not adequately addressed the ongoing life-threatening problems at BRMC? We don’t know exactly. But DOL solicitors are often a conservative bunch — in the sense that they are often reluctant to take chances with cases that aren’t sure winners — especially with General Duty Clause cases that are much harder to win in court than a simple violation of an OSHA standard.  Former Obama administration head Solicitor Patricia Smith often had to push her regional solicitors to be more assertive, figuring sometimes it’s better to take a chance — and even sometimes better to lose — on important issues like workplace violence, than not to fight at all. If this case is any indication, the willingness to take chances to better protect workers is apparently no longer present in the Department of Labor.

What’s wrong with the settlement?

Settlements generally do two things: they readjust the citations and penalties, and they direct the employer to take certain actions that go beyond simple compliance with the law. This settlement withdraws the workplace violence citation, and then takes an weak and unprecedented approach to directing BRMC to make improvements.

If you have the time and patience, compare the BRMC settlement with other OSHA settlements, like this 2013 settlement between OSHA and the North Suffolk Mental Health Association Inc. The North Suffolk settlement directs that the employer “shall take the following measures….” whereas the BRMC settlement basically tries to rewrite history by saying that BRMC has already been doing lots of good stuff and this agreement is just a reminder that they should continue to do that stuff.

Statements like this appear throughout the BRMC settlement, despite the fact that’s not what the OSHA inspectors found or the workers reported:

• BRMC “has made substantial improvements to its Workplace Violence Prevention (WPV) Program.”
• BRMC “will continue to take the specific steps …to maintain an effective and comprehensive WPV Program.”
• BRMC “will continue to comply with the Occupational Safety and Health Act and the regulations.”

And there are many more concrete specific examples of disparities between the conditions OSHA described in the citation, what the settlement states has already happened, and what the workers report about actual current conditions:

• As an abatement measure, the citation stated that Bergen should “re-evaluate secure access controls in use at nurse’s stations, including but not limited to self-locking doors. Secure furniture, telephones and other items that could be used as weapons. The settlement states that “Engineering controls which are already in place and will be maintained include” existing panic buttons, automatic spring loaded door closing mechanisms and augmented barriers around nursing stations.” BRMC employees and OSHA  stated that at the time of the inspection, there were numerous items like phones and other objects at the nurse’s stations that were used as weapons, and automatic door closures, plexiglass extensions at the nursing stations and hidden locks were installed after the start of the inspection. Workers also report that, despite what the settlement says, there are still an inadequate number of panic buttons and social worker offices have not been reconfigured.
• The settlement states that “All WPVPC members and alternates receive WPV training that addresses such topics as regulatory requirements for workplace violence prevention programs, methods for enhancing workplace violence prevention programs, incident investigations, and incident reporting,” yet workers at the hospital report that there has been no training of any kind for committee or sub-committees in how to effectively do their job..
• The citation directed that BRMC “Ensure regular meetings and involvement of the safety committee… made up of representatives from management, security, and labor, as well as representatives from all departments and shifts. The settlement reads that BRMC will continue to implement, a WPV Program which includes “A Workplace Violence Prevention Committee (WPVPC) comprised of standing members of management and direct care staff. Staff members are released to attend WPVPC meetings.” Employees, on the other hand, note that they have not  yet defined the responsibilities of the the committee or appointed members.  In addition, employees report that “Theoretically meetings are scheduled, but management does not provide staff the time to take time off to attend meetings.”

What Does It All Mean?

BRMC has abated some of the violations that OSHA identified in its inspection.  But while immediate abatement can sometimes result in reduced “good faith” penalty reduction,  OSHA citations are based on what inspectors see at the time of the inspection, not the improvements made after the OSHA inspectors arrive.

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. But the hospital’s contention that its workplace violence prevention program “has once again been found to be compliant” is false. The fact is that BRMC was not found to be compliant in 2014, OSHA found BRMC’s workplace violence program to be “inadequate”  in 2015, and the hospital’s workplace violence program still has major problems today.

But the real problem here is not just BRMC’s anxiety about its future and the overly cautious behavior of DOL Solicitors; for a variety of reason this settlement sets a dangerous precedent that may impact worker safety at BRMC and across the country.

First, as any mental health professional will tell you, the first step in curing a problem is admitting that you have a problem. To that extent, BRMC is failing and its leadership lives in a seriously troubling state of denial: “‘The Medical Center has demonstrated through multiple audits and inspections by federal and state regulators that its Workplace Violence Prevention Plan is robust, effective, and compliant,’ said hospital spokeswoman Donnalee Corrieri,” according to the Bergen Register.

The state of denial is encouraged by problematic tweets like this from BRMC’s attorney:

And, anyway, the hospital argues, even if workers are getting beaten up and injured, at least BRMC is better than some other places:  “Although violent incidents have occurred at the medical center, as with all mental healthcare facilities, Bergen Regional consistently experiences fewer incidents of violence than its peer medical systems in New Jersey and nationally,’’ Corrieri said.

It all kind of makes you wonder how willing the hospital is to address the ongoing problems if its leadership already thinks its doing a splendid job and refuses to recognize that it continues to have a problem.

HPAE’s Vice President, Bernie Gerard, is not convinced that the settlement will spur BRMC to action:

Another issue with this settlement is the demoralizing effect it has on workers at the facility who have put their jobs on the line to file an OSHA complaint, only to see that OSHA can’t even sustain a minimal violation with a tiny penalty. If the hospital continues to refuse to deal with its serious workplace violence problems, will workers or the union again be willing to go through the struggle of filing another OSHA complaint?  And this facility has a strong union. How willing will workers be to file OSHA complaints in most other workplaces where they have no union to defend them?

What does this settlement signify for OSHA’s willingness and ability to ensure that workers are protected from the threat of workplace violence? OSHA has made important progress on workplace violence over the past several years.  The agency stepped up enforcement of workplace violence, mostly in health care, but also in prisons and late night retail establishments. For the first time, the agency issued a compliance directive to guide Compliance Officers in issuing General Duty Clause violations (or Hazard Alert Letters when there wasn’t enough evidence for a citation), and modernized the Guidelines for Health Care and Social Service Workers, information in OSHA’s Caring for Caregivers program, and recently updated the compliance directive.   OSHA also held a week-long training seminar for its compliance officers. Since 2012, OSHA has conducted 169 workplace violence inspections and issued 28 workplace citations, 21 of which have been in health care.

What will happen with future OSHA workplace violence cases? 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. 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? And the answer is unclear, why would OSHA inspectors go to all of the extra trouble investigating these difficult, time consuming cases, if all their work is likely to disappear in an ill-advised settlement that makes their hard work look like a waste of time?

And finally, what does the future hold for OSHA’s workplace violence standard?  Under the best of circumstances, using the General Duty Clause to address these hazards is difficult, resource intensive and prone to legal failure (or inappropriate settlements) in the end. A workplace violence standard would not only better protect workers, but it would also provide more certainty to managers of health care institutions. Unfortunately, we already know that this administration doesn’t like any kind of regulatory protections for workers –even going so far as to require that two worker protections be removed for every one added.

In summary, this settlement is troubling — not just for the future of workplace violence protections, but for OSHA enforcement overall. We shall see if settlements such as this will be the rule or the exception in the Trump administration.

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