UNITED STATES OF AMERICA 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

OSHRC Docket No.13-1124 

Secretary of Labor, 

Complainant, 

v. 

Integra Health Management, Inc. 

Respondent. 

BRIEF OF AMICI CURIAE 

NATIONAL ASSOCIATION OF SOCIAL WORKERS, 

NATIONAL COUNCIL FOR OCCUPATIONAL SAFETY AND HEALTH, 

and 

SERVICE EMPLOYEES INTERNATIONAL UNION 

IN SUPPORT OF 

COMPLAINANT, SECRETARY OF LABOR 

RECEIVED OSHRC 

DEC 18 2m5 

OFFICE OF 

EXECUTIVE SECRETARY 

Randy S. Rabinowitz 

Occupational Safety & Health Law Project 

P.O. Box 3769 

Washington, D.C. 20027 

(202) 256-4080 

randy@oshlaw.org 

Counsel for Amici Curiae 
Table of Contents 

Table of Authorities ........................................................................................ ii 

Introduction ................................................................................................. 1 

Statement of Interest of Amici Curiae .................................................................. 1 

Summary of Argument ...................................................................................... 3 

A~u.men.t ....................................................................................................... 4 

OSHRC MUST DEFER TO OSBA'S REASONABLE INTERPRETATION THAT THE 

GENERAL DUTY CLAUSE PROTECTS EMPLOYEES FROM WORKPLACE 

VIOLENCE ............................................................................................................... 4 

A. OSBA'S GUIDELINES SUMMARIZE THE OVERWHELMING PROFESSIONAL 

LITERATURE RECOGNIZING WORKPLACE VIOLENCE AS A HAZARD •.••..... 5 

B. OSBA'S STATUTORY INTERPRETATION THAT WORKPLACE VIOLENCE IS A 

HAZARD UNDER THE GENERAL DUTY CLAUSE IS PLAINLY CORRECT ........ 8 

C. OSBA'S GUIDELINES ESTABLISH THAT HEALTH CARE AND SOCIAL 

SERVICE EMPLOYERS RECOGNIZE WORKPLACE VIOLENCE AS A 

HAZARD ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••.••........•.•.•••.....•. 9 

D. OSHA BAS DISCRETION TO RELY ON THE GENERAL DUTY CLAUSE TO 

PROTECT WORKERS FROM THE THREAT OF WORKPLACE VIOLENCE ...... 10 

E. OSBA'S GUIDELINES DESCRIBE FEASIBLE MEASURES TO ABATE THE 

HAZARD OF WORKPLACE 

VIOLENCE ............................................................................................... 13 

Conclusion ............................................................................................................... 15 

Certificate of Service .................................................................................................... 16 
Table of Authorities 

Pages 

Arcadian Corp., 

20 BNA OSHC 2001 (Rev. Comm'n 2004) ..................................................... .10 

Bethlehem Steel Corp. v. OSHRC, 

607 F.2d 871 (3rd Cir. 1979) ...................................................................... .10 

Cargill, Inc., Nutrene Feed Divi., 

10 BNA OSHC 1398 (Rev. Comm'n 1982) .................................................... .10 

Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984) .................. .3,4,8 

Christensen v. Harris County, 

529 U.S. 577 (2000) ............................................................................. 10,12 

Kokosing Constr. Co., 

17 BNA OSHC 1869 (Rev. Comm'n 1996) .................................................... 10 

National Realty and Constr. Co., v. OSHRC, 

489 F.2d 1257 (D.C. Cir. 1973) .................................................................... 9 

Perez v. Mortg. Bankers Ass 'n, 

135 S. Ct. 1199 (2015) .......................................................................... 11,12 

Sea World of Florida v. Perez, 

748 F.3d 1202 (D.C. Cir. 2014) ............................................................. 9,13,14 

Skidmore v. Swift & Co., 

323 U.S. 134 (1944) ............................................................................ 3,4,10 

UAWv. Chao, 

361 F.3d 243 (3rd Cir. 2004) ..................................................................... 12 

UAW v. General Dynamics, 

815 F.2d 1570 (D.C. Cir. 1987) .................................................................. 13 

United Steelworkers v. Marshall, 

647 F.2d 1189 (D.C. Cir. 1980) .............................................................. 11,14 

USPS, 

25 BNA OSHC 1116 (Rev. Comm'n 2014) ................................................... 10 

ii 
Statutes 

5 U.S.C. 553(b)(A) ......................................................................................... 12 

29 U.S.C. §654(a)(l) ............ ....................................................................... passim 

29 u.s.c. §655(b) .......................... .-............................................................ 11,12 

Other Authorities 

American Nurses Ass'n, Workplace Violence, 

NURSINGW ORLD.ORG, http://nursingworld.org I 

workplaceviolence (last updated Sept. 2015) ........................................................... 7 

JEFFREY LUBBERS, A GUIDE TO FEDERAL AGENCY RULEMAKING 

(ABA 2006) .............................................................................................. 8,11 

NAT'L Ass'N OF Soc. WORKERS POLICY STATEMENT: WOMEN IN THE SOCIAL WORK 

PROFESSION, STRESSORS FOR WOMEN IN SOCIAL WORK, 320, 

323 (10th ed. 2012) ........................................................................................ 2,7 

NAT'L Ass 'N OF Soc. WORKERS, GUIDELINES SOCIAL 

WORKER SAFETY IN THE WORKPLACE (2013), available at 

https://www.socialworkers.org/practice/naswstandards/ 

safetystandards2013. pdf ..................................................................................... 2, 7 

NAT'L INST. FOR OCCUPATIONAL 

SAFETY AND HEALTH PUB No. 93-109, PREVENTING HOMICIDE 

IN THE WORKPLACE (1995) ................................................................................... 7 

NAT'L INST. FOR OCCUPATIONAL 

SAFETY AND HEALTH PUB. No. 96-100, VIOLENCE IN THE 

WORKPLACE (1996), available at http://www.cdc.gov/niosh 

I docs/96-100/ ................................................................................................... 6 

NAT'L INST. FOR OCCUPATIONAL SAFETY AND HEALTH 

PUB No. 92-103, HOMICIDE IN U.S. WORKPLACES: 

A STRATEGY FOR PREVENTION AND RESEARCH 

(1992), available at http://www.cdc.gov/niosh/pdfs/92-

103.pdf; ............................................................................................................................................ 7 

NAT'L INST. FOR OCCUPATIONAL SAFETY AND HEALTH 

PUB. No. 2001-101, VIOLENCE OCCUPATIONAL HAZARDS IN 

HOSPITALS (2001) ........................................................................................... 7 

iii 
NAT'L INST. FOR OCCUPATIONAL SAFETY AND HEALTH 

PUB No. 2004-1 OOD, VIOLENCE ON THE JOB (CD-ROM, 2004), 

available at http://www.cdc.gov/niosh/ docs/video/violence .html ................................................. 7 

NAT'L INST. FOR OCCUPATIONAL SAFETY AND HEALTH 

PUB No. 2006-144, WORKPLACE VIOLENCE PREVENTION 

STRATEGIES AND RESEARCH NEEDS (2006), available at 

http://www.cdc.gov/niosh/docs/2006-144/ ..................................................................................... 7 

0CCUPA TIONAL SAFETY AND HEALTH ADMINISTRATION, 

GUIDELINES FOR PREVENTING WORKPLACE VIOLENCE FOR 

Health Care and Social Service Workers (2004) ............................................................................... passim 

The Duty to Comply with Standards, in 

0CCUP A TI ON AL SAFETY & HEAL TH LAW 

(Gregory N. Dale & P. Matthew Shudtz Eds. 3rd ed. 2013) ............................................ 11 

WHITAKER T. WHITAKER, TOBY WEISMILLER & ELIZABETH J. 

CLARK, NAT'L Ass'N OF Soc. WORKERS, ASSURING THE 

SUFFICIENCY OF A FRONTLINE WORKFORCE: A NATIONAL 

STUDY OF LICENSED SOCIAL WORKERS EXECUTIVE SUMMARY 

(2006) available at http://workforce.socialworkers.org/studies/ 

nasw _ 06 _ execsummary .pdf ................................................................................. 8 

iv 
INTRODUCTION 

Pursuant to the Commission's September 18, 2015 briefing notice, the National 

Association Social Workers (NASW), the National Council for Occupational Safety and Health 

(NCOSH), and the Service Employees International Union (SEIU) respectfully submit this brief 

in support of Complainant, Secretary of Labor. This brief address the question, raised in the 

Commission's briefing notice, of whether Respondent's industry recognized the hazard of 

workplace violence and the role of the Occupational Safety & Health Administration's 

(OSHA's) Guidelines for Preventing Workplace Violence for Health Care and Social Service 

Workers (the "Guidelines"). 1 

Statement of Interest of Amici Curiae 

Established in 1955, the National Association of Social Workers (NASW) is the largest 

association of professional social workers in the United States with over 130,000 members in 55 

chapters. Part of NASW's mission is to promote, develop, and protect the practice of social work 

and social workers. In alignment with this mission, NASW establishes professional standards, 

guidelines and resources to support quality social work practice. NASW supports the 

development of policies and procedures designed to eliminate violence at social work agencies 

and the conduct of research to document the extent of the problem. NASW has developed, 

"Guidelines for Social Worker Safety in the Workplace" to address safety and risk factors 

1 0CCUP A TIONAL SAFETY AND HEAL TH ADMINISTRATION, GUIDELINES FOR PREVENTING 

WORKPLACE VIOLENCE FOR HEALTH CARE AND SOCIAL SERVICE WORKERS (2004). The 

Guidelines were introduced into evidence below and marked as Ex. 33. 

1 
associated with social work practice. 2 These guidelines are a resource to communities, private 

and public agencies, and local, state, and federal policymakers committed to creating a safer 

work environment for social workers and related professionals. 3 Indeed, an Integra manager 

testified she relied upon NASW standards in developing training for the company's service 

coordinators. (ALJ Decision at 24). 

The National Council for Occupational Safety and Health (National COSH) is a 

federation of local and statewide "COSH" groups--Committees/Coalitions on Occupational 

Safety and Health. COSH groups are private, non-profit coalitions of worker organizations, 

health and technical professionals, and others interested in promoting and advocating for worker 

health and safety. COSH groups assist workers who face threats of violence in their healthcare 

and social service jobs. The health and safety of the workers on whose behalf COSH groups 

advocate will be jeopardized if OSHA's authority to rely on the general duty clause, 29 U.S.C. 

§654(a)(l), to address workplace violence is curtailed. 

The Service Employees International Union (SEIU) is a labor union representing two 

million workers across the United States, including over one million healthcare, public health, 

social service and home care workers who work in both institutional healthcare settings, as well 

as the homes of service recipients. These members frequently face the hazards of workplace 

2 NAT'L ASS'N OF Soc. WORKERS, GUIDELINES FOR SOCIAL WORKER SAFETY IN THE WORKPLACE 

(2013), available at 

https://www.socialworkers.org/practice/naswstandards/safetystandards2013. pdf. 

3 NAT'L ASS'N OF Soc. WORKERS, POLICY STATEMENT: WOMEN IN THE SOCIAL WORK 

PROFESSION 320, 328 (10th ed. 2012). 

2 
violence. Over the past twenty years, SEIU has worked to address these hazards, for example by 

conducting workplace violence prevention training for employers of home care workers in New 

York and Illinois, through advocacy for state laws and regulations to protect workers from 

workplace violence, and by assisting with Federal OSHA inspections at workplaces where 

employers fail to address these hazards. Most recently, SEIU is advocating for a California 

OSHA Standards Board proposed Workplace Violence Prevention Standard for Healthcare 

Workers which will cover public health workers who go into the field to perform their duties. 

The health and safety of more than one million workers represented by SEIU will be jeopardized 

if OSHA's authority to rely on the general duty clause, 29 U.S.C. §654(a)(l), to address 

workplace violence is curtailed. 

SUMMARY OF ARGUMENT 

OSHA's Guidelines summarize the agency's approach to regulating workplace violence 

in certain high risk industries. The Guidelines announce OSHA's statutory interpretation that 

workplace violence represents a hazard within the scope of the general duty clause. 29 U.S.C. 

§654(a)(l). This interpretation of the scope of the Occupational Safety & Health Act (OSH Act) 

is entitled to deference. Chevron US.A. v. Natural Resources Defense Council, 467 U.S. 837 

(1984). The Guidelines collect and summarize available literature on the scope of the violence 

problem in the health care and social service industries. This professional literature demonstrates 

that, within these industries, workplace violence is recognized as a hazard to workers. OSHA's 

conclusion that violence is a recognized hazard in some industries is also entitled to deference. 

See Skidmore v. Swift & Co., 323 U.S. 134 (1944). The Guidelines alert the public that OSHA 

intends to regulate workplace violence by issuing citations in appropriate cases under the general 

3 
duty clause. OSHA has unreviewable discretion to choose between standard setting and 

enforcement as the best means to protect workers from violence. Finally, the Guidelines 

describe feasible methods of abating the risk of workplace violence. They provide a roadmap for 

employers who wish to avoid citation. For all these reasons, the Guidelines represent a 

reasonable interpretation of the Act and its application to violence. The Commission should 

defer to the Guidelines and make clear that, in appropriate case, the general duty clause demands 

action by employers to protect workers from this recognized hazard. 

ARGUMENT 

OSHRC MUST DEFER TO OSHA'S RESONABLE INTERPRETATION THAT THE 

GENERAL DUTY CLAUSE PROTECTS EMPLOYEES FROM WORKPLACE 

VIOLENCE 

OSHA's Guidelines, updated several times since 2004, serve four different functions. 

First, the Guidelines make plain the Secretary's view that workplace violence is a hazard within 

the meaning of the Occupational Safety & Health Act. Second, the Guidelines announce that 

"after careful review," OSHA has concluded there is ample evidence that the hazard of 

workplace violence is recognized by the health care and social service industries. Third, the 

Guidelines alert the public that OSHA will rely on citations under section 5(a)(l ), rather than 

rulemaking, to protect workers from this recognized hazard. Finally, the Guidelines suggest 

feasible abatement measures employers can take to prevent workplace violence and avoid 

citation. The statutory interpretations and policy choices contained in the Guidelines are 

OSHA's to make. Each is reasonable under the law. The Guidelines are entitled to deference 

under both Chevron US.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984) and 

Skidmore v. Swift & Co., 323 U.S. 134 (1944). 

4 
A. OSHA'S GUIDELINES SUMMARIZE THE OVERWHELMING 

PROFESSIONAL LITERATURE RECOGNIZING WORKPLACE 

VIOLENCE AS A HAZARD. 

The Guidelines summarize the available literature on risk to health care and social service 

employees from workplace violence and provide employers with information on effective tools 

to minimize the risk. The guidelines are quite narrow and specific. They address violence in 

health care and social service settings; they do not address violence across all workplaces. OSHA 

focuses its attention on these workplaces because they "have faced significant risk of job-related 

violence" and "assaults represent a serious safety and health hazard within these industries." 

Guidelines at 5. The Guidelines address the hazards posed to health care and social service 

workers in hospital and clinical settings as well as the hazard faced by home care workers who 

visit patients' homes. Id. at 8. OSHA's Guidelines are further limited to addressing violence 

from "internal" sources, identified as co-workers and patients, and not violence from "external" 

sources, such as muggers or robbers. Id. at 3. 4 

The Guidelines recognize that not every instance of workplace violence can be 

eliminated. Id. at 3. Instead, the Guidelines focus on reducing the risk of violence to workers. 

When factors suggesting an increased risk of workplace violence are present, the Guidelines 

recommend that employers develop and implement a workplace violence prevention program. 

Id. at 5. Among the risk factors suggesting that a workplace violence prevention program is 

necessary are "solo work, often in remote locations" and "lack of training." Id. at 6. 

4 Thus, contrary to the argument made by Integra (Integra Br. At 17) and the Chamber of 

Commerce (Chamber) (Chamber Br. At 11) the Guidelines do not portend OSHA regulation of 

customer/employee interactions across all industries. See ALJ Dec. at 64. 

5 
Administrative Law Judge Phillips (ALJ) found these risk factors should have alerted Integra to 

the need for workplace violence prevention programs. ALJ Dec. at 67-69. 

The Guidelines suggest a variety of controls to effectively reduce the risk of violence. 

The recommendations are consistent with OSHA's well-known hierarchy of controls. When 

feasible, the Guidelines recommend that employers first seek to reduce the hazard of workplace 

violence through reliance on system solutions, including engineering controls, such as physical 

barriers. When an employer cannot physically alter the workplace, a problem Integra claims 

limited its response to workplace violence, the Guidelines recommend that employers implement 

administrative and work practice controls to reduce the risk of workplace violence. Id at 15-17. 

The Guidelines specifically recommend several of the abatement measures that ALJ Phillips 

found would have been feasible for Integra to implement, such as determining the behavioral 

history of new patients and establishing a buddy system for workers when visiting patients with a 

history of violence or mental illness. Id at 17. 

OSHA's Guidelines mirror the recommendations of other organizations which warn that 

health care and social service workers face a threat of workplace violence from patients and 

other clients. Between 2003-2012, the Bureau of Labor Statistics reported more than 154,460 

nonfatal occupational injuries and illnesses involving days away from work resulting from 

workplace violence, two-thirds of these injuries occurred among healthcare and social assistance 

workers. The National Institute for Occupational Safety & Health (NIOSH) issued a Current 

Intelligence Bulletin in 1996 identifying an increased risk of injury for workers in health care, 

community services, and retail from workplace violence. 5 NIOSH's Bulletin advises employers 

5 THE NAT'L INST. FOR OCCUPATIONAL SAFETY AND HEALTH PUB. No. 96-100, VIOLENCE IN THE 

WORKPLACE (1996), available at http://www.cdc.gov/niosh/docs/96-100/ 

6 
in these industries to protect workers from this risk. NIOSH has several additional publications, 

which the Secretary entered into the record below, that describe the risk health care and social 

service workers face from workplace violence. 6 In addition, several states have adopted laws or 

regulations increasing the protections for healthcare workers exposed to workplace violence. 7 

Professional organizations in the health care and social services industries have likewise 

published guidelines and training materials to alert workers and others to the increased risks 

these workers face of violent assaults from patients. NASW has developed "Guidelines for 

Social Worker Safety in the Workplace." 8 These professional standards were adopted because 

social workers, particularly female social workers, face a serious risk of workplace violence in 

caring for patients. 9 A study of social workers found that 44 percent reported facing personal 

safety issues on the job. 10 NASW has a variety of other resources available to employers and 

6 See NAT'L INST. FOR OCCUPATIONAL SAFETY AND HEALTH PUB No. 2006-144, WORKPLACE 

VIOLENCE PREVENTION STRATEGIES AND RESEARCH NEEDS (2006), available at 

http://www.cdc.gov/niosh/docs/2006-144/; NAT'L INST. FOR OCCUPATIONAL SAFETY AND 

HEALTH PUB No. 2004-lOOD, VIOLENCE ON THE JOB (CD-ROM, 2004), available at 

htto://'\\;'\\<W.cdc.gov/niosh/docs/video/violence.html; NAT'L INST. FOR OCCUPATIONAL SAFETY 

AND HEALTH PUB. No. 2001-101, VIOLENCE OCCUPATIONAL HAZARDS IN HOSPITALS (2001); 

NAT'L INST. FOR OCCUPATIONAL SAFETY AND HEALTH PUB No. 93-109, PREVENTING HOMICIDE 

IN THE WORKPLACE (1995); NAT'L INST. FOR OCCUPATIONAL SAFETY AND HEALTH PUB No. 92-

103, HOMICIDE IN U.S. WORKPLACES: A STRATEGY FOR PREVENTION AND RESEARCH available 

at http://www.cdc.gov/niosh/pdfs/92-103 .pdf 

7 For more information on state and local laws or regulations addressing workplace violence, see 

American Nurses Ass'n, Workplace Violence, NURSINGWORLD.ORG, http://nursingworld.org/ 

workpiaceviolence (last updated Sept. 2015). 

8 NAT'L Ass'N OF Soc. WORKERS, GUIDELINES. The Secretary cited these professional standards 

in urging the ALJ below to find that the social service industry of which lntegra was a part 

recognized the risk of workplace violence. 

9 NAT'L Ass 'N OF Soc. WORKERS, POLICY ST A TEMENT: WOMEN IN THE SOCIAL WORK 

PROFESSION, STRESSORS FOR WOMEN IN SOCIAL WORK, 320, 323 (10th ed. 2012). 

lO WHITAKER T. WHITAKER, TOBY WEISMILLER & ELIZABETH J. CLARK, NAT'L Ass'N OF Soc. 

WORKERS, ASSURING THE SUFFICIENCY OF A FRONTLINE WORKFORCE: A NATIONAL STUDY OF 

7 
others aimed at recognizing the risks social workers face, identifying high hazard work 

environments, and protecting social workers from these risks. 

http://www.socialworkers.om:/practice/social work satetv/default.asi' Integra relied upon these 

resources in designing training for its service coordinators. (ALJ Decision at 24). 

B. OSHA'S STATUTORY INTERPRETATION THAT WORKPLACE 

VIOLENCE IS A HAZARD UNDER THE GENERAL DUTY CLAUSE IS 

PLAINLY CORRECT. 

Section 5(a)( 1) of the OSH Act requires employers to provide "to each of his employees 

employment and a place of employment which are free from recognized hazards." 29 U.S.C. 

§654(a)(l). To establish a violation ofthis section, OSHA must show that "a condition or 

activity in the workplace presents a hazard to an employee." OSHA interprets the scope of the 

general duty clause to include the hazard of workplace violence. OSHA's interpretation of the 

statute it administers is entitled to deference. See Chevron US.A. v. Natural Resources Defense 

Council, 467 U.S. 837 (1984). 11 

Integra and the Chamber of Commerce nevertheless urge the Commission to ignore 

OSHA's reasonable interpretation of the OSH Act, arguing that violence falls outside the scope 

of section 5(a)(l) of the OSH Act. (Integra Br. At 12-15; Chamber Br. At 5-6). They argue that 

direct contact with patients is the nature of Integra's business and, therefore, cannot be defined as 

LICENSED SOCIAL WORKERS EXECUTIVE SUMMARY (2006) available at 

http://workforce.socialworkers.org/studies/nasw _ 06 _ execsummary .pdf. 

11 Courts usually apply Chevron deference to a statutory interpretation developed in the course of 

informal agency action such as the process OSHA used to develop the Guidelines. See 

generally, JEFFREY LUBBERS, A GUIDE TO FEDERAL AGENCY RULEMAKING, 505-507 (ABA 

2006). But, even in circumstances where Chevron deference is not warranted, courts generally 

give some deference or weight to an agency interpretation of the statute it administers under 

Skidmore v. Swift & Co., 323 U.S. 134 (1944). See generally, Lubbers at 507. 

8 
a hazard. It is worth noting that nothing in ALJ Phillips decision bars Integra's service 

coordinators from continued contact with patients. Indeed, the argument Integra makes about the 

nature of its business is similar to the argument made by Sea World, and rejected by the 

Commission and the D.C. Circuit, that direct contact with killer whales was the essential nature 

of its business. Sea World of Florida v. Perez, 748 F.3d 1202, 1210 (D.C. Cir. 2014). In both 

cases, workers can be protected from recognized hazards, and employers can continue their 

business, if the method of performing the job is modified to abate risk. 

C. OSHA'S GUIDELINES ESTABLISH THAT HEALTH CARE AND SOCIAL 

SERVICE EMPLOYERS RECOGNIZE WORKPLACE VIOLENCE AS A 

HAZARD. 

The well-settled test for proving a violation of section 5(a)(l), 29 U.S.C. §654(a)(l), 

requires the Secretary to establish the existence of a hazard that was either actually recognized 

by the cited employer or by the industry of which it is a part. National Realty and Constr. Co., v. 

OSHRC, 489 F.2d 1257 (D.C. Cir. 1973); Sea World, 748 F.3d at 1207. ALJ Phillips found that 

Integra had actual knowledge of the workplace violence hazards its' service coordinators faced. 

(ALJ Dec. at 70-75). Given the breadth of federal, state, and professional attention to these risks, 

it is hard to imagine how any reasonably prudent employer could not have known that social 

service workers, such as Integra's service coordinators, faced a serious risk of workplace 

violence. 

But, even if Integra did not know actually know of the risk of violence, the health care 

and social service industries of which it is a part clearly recognized the risk of violence. The 

Commission and the courts have consistently held that professional standards and NIOSH 

publications, alerting employers to a serious occupational risk facing workers, can be used to 

establish industry recognition under the general duty clause. See Kokosing Constr. Co., 17 BNA 

9 
OSHC 1869 (Rev. Comm'n 1996); Cargill, Inc., Nutrene Feed Div., 10 BNA OSHC 1398 (Rev. 

Comm'n 1982); Bethlehem Steel Corp. v. OSHRC, 607 F.2d 871 (3rd Cir. 1979); USPS, 25 BNA 

OSHC 1116 (Rev. Comm'n 2014). 

Under settled law, each of the professional codes and other materials cited in the 

Guidelines, standing alone, could be relied upon to show that Integra's industry recognized the 

threat workplace violence posed to service coordinators. 12 The Guidelines summarize this body 

of evidence, advise employers that OSHA views this evidence as establishing that workplace 

violence in the health care and social service industry is a recognized hazard, and that the agency 

will rely on the general duty clause, 29 U.S.C. §654(a)(l), as enforcement authority when 

employers fail to take adequate steps to protect employees from this hazard. OSHRC should 

defer to OSHA' s interpretation of the scope of the general duty clause and its application to 

workplace violence. See, Skidmore v. Swift & Co., 323 U.S. 134 (1944); Christensen v. Harris 

County, 529 U.S. 576 (2000). 

D. OSHA HAS DISCRETION TO RELY ON THE GENERAL DUTY CLAUSE 

TO PROTECT WORKERS FROM THE THREAT OF WORKPLACE 

VIOLENCE 

Guidance documents, such as OSHA's Guidelines, are a widely accepted tool for alerting 

employers that OSHA views workplace violence as a recognized hazard in the health care and 

social service industries and describing its enforcement policy towards violence. OSHA 

12 The Guidelines, and many of the publications they reference, speak to the threat of violence 

facing health care and social service workers. OSHA's expert testified that Integra's service 

coordinators were doing social work based activities. (ALJ Dec. at 58). Integra attempts to 

argue that it was not a part of the health care or social service industries were properly rejected 

by the ALJ. (ALJ Dec. at n.110). Even iflntegra was part of a related industry, the Commission 

can easily infer that professional standards applicable to the health care and social service 

industries should apply to Integra as well. Arcadian Corp., 20 BNA OSHC 2001 (Rev. Comm'n 

2004). 

10 
Compliance Directive (Ex. 32) further describes the circumstances under OSHA may cite 

employers for exposing workers to violence hazards. OSHA should be commended for 

transparently alerting interested stakeholders of its intent to cite employers who fail to abate 

violence hazards under the general duty clause. 

The decision to rely on enforcement over standard setting as a method to reduce the risk 

of workplace violence is OSHA's to make. It is generally recognized that administrative 

agencies may select between rulemaking and adjudication to establish standards of conduct in 

the regulated community. See JEFFREY LUBBERS, A GUIDE TO FEDERAL AGENCY RULEMAKING, 

139 (ABA 2006). Nothing requires OSHA to enforce the OSH Act "principally by 

promulgating standards." (Chamber Br. At 16). 

OSHA's choice to rely on standards or enforcement to eliminate hazards has 

consequences. See Perez v. Mortg. Bankers Ass 'n, 135 S. Ct. 1199, 1204 (2015). If OSHA 

issues a standard under section 6(b), 29 U.S.C. §655(b), the standard has the force and effect of 

law. Perez, 135 S. Ct. at 1204. If OSHA cites an employer for violation of a standard, it can 

establish a violation of the Act by showing that the standard applied and was violated. See 

generally, The Duty to Comply with Standards in 0CCUPA TIONAL SAFETY & HEAL TH LAW 81 

(Gregory N. Dale & P. Matthew Shudtz Eds. 3rd ed. 2013). The abatement measures included in 

a standard are presumed feasible. United Steelworkers v. Marshall, 647 F.2d 1189, 1269 (D.C. 

Cir. 1980). If OSHA had promulgated a workplace violence standard, Integra would have been 

obligated to comply. 

When OSHA issues guidelines, such as those addressing workplace violence, they are not 

binding and do not have the force oflaw. Perez v. Mortg. Bankers, 135 S. Ct. at 1203-04. They 

advise employers of what OSHA thinks the general duty clause requires. Id. Because the 

11 
Guidelines are interpretive they may be issued without notice and comment rulemaking. 5 U.S.C. 

553(b )(A). To the extent that they persuasively interpret the literature on industry practices and 

professional standards on workplace violence risks, OSHRC and the courts should defer to them. 

See Christensen v. Harris County, 529 U.S. at 587; Skidmore, 323 U.S. at 140. 

Granting deference to OSHA's judgment that violence poses a recognized hazard in 

Integra' s industry does not have the effect of converting advisory guidance into mandatory rules. 

In any enforcement proceeding, OSHA would still bear the burden of showing that the abatement 

measures it suggests are feasible. And, since the Guidelines are interpretive, and not legislative, 

rules and do not have the force of law, Integra is free to argue that the Guidelines are 

unreasonable, in the sense that they do not accurately describe existing professional standards 

relating to workplace violence or that the abatement methods they describe are infeasible. See 

Perez v. Mortg. Bankers, 135 S. Ct. at 1209. In other words, OSHA's burden of proving a 

general duty clause citation remains higher, even if OSHRC defers to the Guidelines, then it 

would be if OSHA had promulgated a workplace violence standard. Deference does not give 

OSHA's Guidelines the force oflaw. 

Nor will deference to OSHA's Guidelines circumvent the rulemaking process. OSHA is 

not required to issue a section 6(b) standard for every hazard covered by the OSH Act. UAW v. 

Chao, 361 F.3d 243 (3rd Cir. 2004) (OSHA has broad authority to allocate its resources and 

refuse to issue a standard). The OSH Act covers thousands of unregulated hazards. Rulemaking 

has become ossified and, on average, the standard setting process takes more than seven years to 

complete. OSHA would be derelict in its duty if it took no action to protect workers from 

recognized hazards until it could issue a 6(b) standard governing each risk facing workers. 

Indeed, even if OSHA has adopted a standard, where an employer knows it to be inadequate the 

12 
employer has an independent statutory duty to protect workers from harm. UAW v. General 

Dynamics, 815 F.2d 1570 (D.C. Cir. 1987). Thus, even if OSHA were to issue a workplace 

violence standard, the general duty clause would remain applicable. Id. 

By notifying employers about how OSHA will exercise its enforcement discretion under 

section 5(a)(l), and the steps employers can take to avoid citation, OSHA's Guidelines provide 

constitutionally adequate notice. So long as a "reasonably prudent employer in the industry 

would have known that the proposed method of abatement was required," courts have rejected 

employer claims that they lacked notice of the requirements imposed by law. Sea World, 748 

F.3d at 1216. Here, the Guidelines, and OSHA's Compliance Directive (Ex. 32), make plain 

OSHA's intent to rely on the general duty clause to cite employers who fail to address workplace 

violence and describe a variety of feasible abatement measure employers should implement to 

avoid citation. The Guidelines provided Integra with adequate notice of what the law required. 

E. OSHA'S GUIDELINES DESCRIBE FEASIBLE MEASURES TO ABATE 

THE HAZARD OF WORKPLACE VIOLENCE. 

The Guidelines recommend that employers establish workplace violence prevention 

programs to protect workers from the risk of violence. Among the measures OSHA recommends 

be included in such a program were increased training, screening of patients to identify those 

with a history of violence, and assigning more experienced service coordinators to conduct 

intake with more challenging patients. ALJ Phillips found each of these abatement measures 

would have been feasible for Integra to implement. (ALJ Dec. at 86-90). In fact, Integra 

implemented several after its' service coordinator was killed. 

Integra and the Chamber nevertheless argue that abatement of the citation is infeasible 

because Integra does not control its' service coordinators' work environment. Assuming that 

13 
Integra cannot effectively control the homes of the patients its service coordinators visit, it can 

control the means by which service coordinators accomplish their tasks. OSHA and the 

Commission have long recognized that even where engineering controls (or fixes to the 

workplace) are not feasible, an employer must nevertheless try to reduce the hazard through 

administrative and work practice controls (or fixes to the way the job is accomplished). United 

Steelworkers v. Marshall, 647 F.2d at 1269. Here, the Secretary demonstrated, and the ALJ 

found, that Integra could have increased the training for service coordinators, assigned an 

experienced service coordinator to initial assessments of patients with a history of violence, or 

implemented a mandatory buddy system so a service coordinator would not face a potentially 

violent situation alone. None of these abatement measures require changes to the physical 

aspects of the workplace. Integra is feasibly able to implement each of them. 

Doing so would not threaten Integra's business model. Just as the remedy for Sea 

World's general duty clause violations permitted "continued human interactions and 

performances with killer whales" so long as they "continue with increased safety measures," so 

too the remedy for Integra's 5(a)(l) violations permit continued patient contact by service 

coordinators but with increased training, more experience, or accompanied by a co-worker. See 

Sea World, 748 F.3d at 1210. Integra had a duty under the general duty clause to provide its 

employees with "employment" "free from recognized hazards," 29 U.S.C. §654(a)(l), even 

when it could not physically alter their place of employment. Clearly, Integra could have 

organized the work of service coordinators differently to reduce the hazard posed by client 

violence. 

CONCLUSION 

14 
For the foregoing reasons, and those advanced by the Secretary of Labor, the ALJs 

decision affirming the citations issued to Integra Health Management should be upheld. 

15 

Respectfully submitted, 

~~Js~~~ Occupational Safety & Health Law Project 

P.O. Box 3769 

Washington, DC 20027 

(202) 256-4080 

randv(al,oshlaw .org 
CERTIFICATE OF SERVICE 

I hereby certify that on this 18th day of December 2015, I served a copy of the foregoing 

Brief for Amici Curiae on counsel for the Secretary and Integra electronically. 

16 

~ &l!!.w""~'1 L11 

Randy S. Rabinowitz r