Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On March 1, 2023, the Occupational Safety and Health Administration (OSHA) formally convened the Small Business Advocacy Review (SBAR) Panel regarding a possible Prevention of Workplace Violence in Healthcare and Social Assistance rule. By formally convening the SBAR Panel, OSHA has taken yet another step in developing a programmatic approach for the prevention of workplace violence in the healthcare and social assistance industries.
About SBREFA and the Panel Process
Congress passed the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) after the small business community raised concerns about the complexity and implementation cost of the numerous federal regulations applicable to them. Accordingly, the intent of SBREFA is to not only help small businesses understand and comply with federal regulations but also to provide them with a more active role in developing and raising concerns with the regulations.
As part of SBREFA, OSHA and other covered agencies are required to convene a SBAR Panel (which is commonly referred to as a SBREFA Panel) prior to publishing any proposed rule that is expected to have a significant economic impact on a substantial number of small entities. The SBAR/SBREFA Panel consists of members from OSHA, the Small Business Administration’s Office of Advocacy, and the Office of Management and Budget’s Office of Information and Regulatory Affairs. The Panel will listen to comments from Small Entity Representatives (SERs), which include small businesses, small non-profit organizations, and certain small governmental jurisdictions, which may be affected by the draft proposed rule, and will also review the draft proposed rule and related analyses prepared by the agency. Once the SBAR/SBREFA Panel has been convened, the Panel has 60 days to submit its written report to OSHA. OSHA will review the Panel’s report, make revisions it deems appropriate, and publish a proposed rule in the Federal Register.
Because OSHA convened the SBAR/SBREFA Panel on March 1, the Panel must submit its final report to OSHA by May 1, 2023. As part of the process, the SBAR/SBREFA Panel will hold multiple teleconferences with SERs during the weeks of March 13 and March 20, 2023. While these teleconferences will be open to the public, only the SERs and members of the Panel are permitted to participate in the discussions.
What Might OSHA’s Proposed Workplace Violence Rule Include?
OSHA considers workplace violence to be “any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site.” This can include threats and verbal abuse along with physical assaults or even homicide.
Currently, there is no federal OSHA standard1 for preventing workplace violence in healthcare or any other industry. Yet, according to data from the BLS Survey of Occupational Injuries and Illnesses for 2019, workplace violence is more widespread in the healthcare and social services industries than in any other industry. As a result, OSHA is considering developing a new standard addressing Type II workplace violence, which would apply to healthcare and social assistance workers who face an increased risk of workplace violence perpetrated by patients, clients, and visitors at facilities such as:
- Hospitals, including emergency departments;
- Psychiatric hospitals and residential behavioral health facilities;
- Ambulatory mental healthcare and ambulatory substance abuse treatment centers;
- Freestanding emergency centers;
- Residential care facilities;
- Home healthcare;
- Emergency medical services; and
- Social assistance (excluding child day care centers).
Although the proposed rule has not been published yet, OSHA has provided some insight as to what the potential standard will include. Per OSHA, the key requirements of potential standard are as follows:
- A workplace violence prevention program (WVPP);
- Hazard assessments;
- Implementation of control measures with added control requirements in high-risk areas;
- Incident investigation and maintenance of a workplace violence log; and
- Anti-retaliation policy to encourage employee reporting of workplace violence incidents.
The insight provided by OSHA resembles the workplace violence prevention regulation that was implemented in California on April 1, 2017.
We know based on the implementation cost in California that the potential cost of such a standard cannot be understated. OSHA estimates that the potential standard would cover 14 million employees working at more than 300,000 establishments. The total cost of the potential standard is estimated to be $1.22 billion per year.
Workplace violence is undoubtedly an issue that OSHA is keenly interested in. Healthcare employers that may be covered by a potential workplace standard should review their workplace safety programs to evaluate how workplace violence threats are addressed. Small businesses that may be covered can also consider drafting comments or raising their concerns at the SBAR Panel.2 Littler Mendelson will continue to monitor this issue.
1 Several states, including California, Connecticut, Illinois, Maine, Maryland, Minnesota, New Jersey, New York, Oregon, and Washington, require healthcare employers to develop and implement workplace violence prevention programs.
2 Littler Mendelson’s OSHA Practice Group and Workplace Policy Institute can assist small businesses in this process. For assistance, please get in touch with your Littler Mendelson contact.