In 2023, the federal Occupational Safety and Health Administration began preliminary efforts on a workplace violence safety standard for healthcare and social assistance employers. To date, OSHA has not proposed any standard, nor does it appear to be making significant progress toward issuing any such regulations. However, earlier this month the Tenth Circuit Court of Appeals (which includes Colorado) reminded healthcare employers that they can be cited by OSHA for failure to prevent employee exposure to workplace violence, even in the absence of a specific safety standard.

The Tenth Circuit affirmed a citation against a hospital found not to have taken reasonable and available measures to prevent patients from attacking employees. The citation was issued under the General Duty Clause, which allows OSHA to cite employers even in the absence of a specific safety standard if the company exposes workers to an unreasonable risk of death or serious harm. In this case, OSHA cited the employer because it had failed to adopt safety measures such as limiting patient access to work areas and potential weapons, and it did not provide adequate security staff or communications methods in the event of violent behavior.

The employer contended that Centers for Medicare & Medicaid Services statutes give CMS the authority to establish such safety standards and therefore preempted OSHA jurisdiction. The Tenth Circuit rejected this argument, noting that CMS rules focus on patient and not employee safety, and that the agency has never sought to exercise workplace safety authority.

General Duty Clause citations require a higher burden of proof from OSHA. However, if the agency concludes that the employer is not implementing feasible measures recognized in the industry to prevent harm to employees, it can issue citations and penalties even in the absence of specific regulatory requirements.

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