Labor & Employment Developments Blog

April marks Workplace Violence Awareness Month, a time dedicated to emphasizing the risks of workplace violence and necessary steps for prevention. This month serves as a crucial opportunity for employers to reassess their workplace violence policies, ensure compliance with evolving laws and regulations, and minimize liability.

All employers should be mindful of the Occupational Safety and Health Act’s (“OSH Act”) General Duty Clause. The OSH Act generally requires that employers implement sufficient safeguards to protect the health and safety of employees from recognized workplace hazards. The General Duty Clause requires that employers identify and assess safety risks, including those related to workplace violence, and implement proactive measures to prevent accidents and injuries. Failure to meet these obligations can result in legal consequences and citations issued by the Occupational Safety and Health Administration (“OSHA”).

Recently, an Administrative Law Judge (“ALJ”) of the Occupational Safety and Health Review Commission (“OSHRC”) vacated a citation issued by OSHA to a private security company under the General Duty Clause. In Secretary of Labor v. Professional Security Consultants, Inc., an employer faced penalties under the General Duty Clause after an armed patron fatally shot one of its mall security officers. Dkt. 22-0597 (OSHRC, Dec.26, 2024). At trial, the ALJ concluded that the armed patron did not constitute a legally recognizable workplace hazard under the General Duty Clause because the incident was “unforeseeable.” Further, the ALJ found that the employer established adequate policies and training to address the broader risk of workplace violence and threats to the workplace. Accordingly, the ALJ vacated the citation.  This case emphasizes the importance of developing comprehensive violence prevention strategies to comply with OSH Act’s General Duty Clause and mitigate hazards in the workplace.

In addition to federal requirements, state legislatures, including Ohio, are actively proposing laws to establish clear guidance on workplace violence prevention. Currently, Ohio law requires hospitals display notices in designated areas, stating that violence toward its staff will not be tolerated, assault against staff may result in a felony charges, and staff has the right to work without fear for their safety. However, effective April 9, 2025, Ohio hospitals will be required to establish a security plan for preventing workplace violence by July 8, 2025. To develop this plan, each hospital (or hospital system) must form a “team” consisting of (i) at least one member who is a current or former patient or a family member of such a patient; and (ii) at least 50% of the team must be comprised of health care employees who provide direct patient care at the hospital or hospital system.

What must the security plan include?

1. Conduct a Security Risk Assessment: Each plan must be based on the results of a security risk assessment conducted at the hospital. This assessment must focus on “high-risk” areas of the hospital, such as the emergency and psychiatric departments, and be conducted in consultation with the medical and nursing directors of each department or other high-risk area from those areas. Further, this assessment must consider factors such as trauma level designation, overall patient volume (including psychiatric and forensic patients), past incidents of violence against staff and levels of injury resulting from such incidents, crime rates in the surrounding community, and any other relevant data points specified by the team.
2. Optional Employee Identification: Each plan must afford employees providing direct patient care the option to request that their identification badge only display their first name or first name and last initial.
3. Staff Assignment: Each hospital must have at least one hospital employee trained in de-escalation practices present at all times in all identified high-risk areas, including the emergency department and psychiatric department. Based on the results of the risk assessment, the plan must address whether hospital police, trained security personnel, or off-duty law enforcement officers are required to be present in any of these areas. Each plan must also outline the specific training requirements for security in high-risk areas, focusing on weapon response, de-escalation techniques, crisis intervention, and situations involving a risk of self-harm.

Once the security plan is established, it must be reviewed annually by the original team or a successor team meeting the outlined requirements. Each hospital or hospital system will be required to attest to the Ohio Department of Health that it has reviewed and/or updated its plan.

As employers navigate the evolving landscape of workplace violence legislation, it is crucial to stay informed about federal and state requirements to ensure compliance. The KMK Law Labor & Employment Group will continue to monitor developments in workplace violence legislation and provide additional information as it becomes available. Employers can reach out to the Labor & Employment Group for review of current workplace policies and/or the drafting of security plans to ensure compliance with the new legislation.