I 115th CONGRESS 2d Session H. R. 7141 IN THE HOUSE OF REPRESENTATIVES November 16, 2018 Mr. Courtney (for himself, Ms. Bonamici , Mr. Brady of Pennsylvania , Ms. DeLauro , Ms. Norton , Ms. Jackson Lee , Mr. Khanna , Ms. Schakowsky , Mr. Scott of Virginia , Mr. Takano , Ms. Wilson of Florida , Ms. Shea-Porter , Mr. Sires , Mr. DeSaulnier , Mr. Larson of Connecticut , Mr. Payne , Mr. Himes , Mr. Pocan , Mr. Cicilline , Ms. Esty of Connecticut , Mr. Norcross , and Mr. Espaillat ) introduced the following bill; which was referred to the Committee on Education and the Workforce , and in addition to the Committees on Energy and Commerce , and Ways and Means , for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To direct the Secretary of Labor to issue an occupational safety and health standard that requires covered employers within the health care and social service industries to develop and implement a comprehensive workplace violence prevention plan, and for other purposes.

1. Short title This Act may be cited as the Workplace Violence Prevention for Health Care and Social Service Workers Act . 2. Findings Congress finds the following: (1) In a 2016 report entitled, Workplace Safety and Health: Additional Efforts Needed to Help Protect Health Care Workers from Workplace Violence , the Government Accountability Office reported over 730,000 cases of health care workplace assaults over the 5-year span from 2009 through 2013, based on Bureau of Justice Statistics data. (2) The health care and social service industries experience the highest rates of injuries caused by workplace violence. Nurses and nursing, psychiatric, home health, and personal care aides all are at high risk. (3) The Bureau of Labor Statistics reports that health care and social service workers suffered 69 percent of all workplace violence injuries caused by persons in 2016 and are nearly 5 times as likely to suffer a workplace violence injury than workers overall. (4) According to a survey of 3,500 American emergency physicians conducted by the American College of Emergency Physicians, 47 percent of emergency room doctors have been physically assaulted at work, and 8 in 10 report that this violence is affecting patient care. (5) Workplace violence in health care and social service sectors is increasing. Bureau of Labor Statistics data show that private sector injury rates of workplace violence in health care and social service sectors increased by 63 percent between 2006 and 2016. Due to under-reporting, actual injury rates from workplace violence are widely recognized to be higher than reported levels. (6) Violence against workers in health care settings is most commonly due to assaults by patients or clients, or persons accompanying patients or clients. (7) The Occupational Safety and Health Administration has issued Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers , however, this guidance is not enforceable. Absent an enforceable standard, employers lack mandatory requirements to implement a violence prevention program, and workers lack sufficient protection from workplace violence. (8) Studies have demonstrated that workplace violence prevention programs tailored to the needs of specific work areas and State-based workplace violence prevention legislation are strongly associated with reductions in workplace violence. Proper staff training, appropriate staffing levels, sufficient resources, and the use of evidence-based practices in the provision of services (such as effective communication with patients using de-escalation techniques) can reduce risks to the safety of both patients and staff. (9) Nine States have mandated that certain types of health care facilities implement workplace violence prevention programs. On April 1, 2018, the Division of Occupational Safety and Health of the State of California issued a comprehensive standard ( Workplace Violence Prevention in Health Care ) that requires health care facilities to implement a workplace violence prevention plan. (10) Employer organizations have challenged the Occupational Safety and Health Administration’s authority to utilize the General Duty Clause of the Occupational Safety and Health Act of 1970 to enforce against workplace violence hazards, arguing that Congress did not intend to cover workplace violence under such clause when the Act was enacted in 1970. (11) The Occupational Safety and Health Administration (OSHA) received two petitions for rulemaking in July of 2016, calling on OSHA to promulgate a violence prevention standard for health care and social service sectors. On December 6, 2016, OSHA issued a Request for Information (RFI) soliciting information on this issue. On January 10, 2017, OSHA conducted a public meeting to receive stakeholder input and to supplement the online comments submitted in response to the RFI. At that meeting, OSHA announced it accepted the petitions and would develop a Federal standard to prevent workplace violence in health care and social service settings. In the spring of 2017, the workplace violence prevention standard was removed from active consideration and placed on the Department of Labor’s long-term agenda . Subsequently, it was placed back on the regulatory agenda. OSHA’s efforts to move forward with rulemaking have been halting and inconsistent. Therefore, legislation is necessary to ensure the timely development of a standard to protect workers in health care and social service settings. 3. Table of contents The table of contents for this Act is as follows: Sec. 1. Short title. Sec. 2. Findings. Sec. 3. Table of contents. Title I—Workplace Violence Prevention Standard Sec. 101. Workplace violence prevention standard. Sec. 102. Scope and application. Sec. 103. Requirements for workplace violence prevention standard. Sec. 104. Rules of construction. Sec. 105. Other definitions. Title II—Amendments to the Social Security Act Sec. 201. Application of the workplace violence prevention standard to certain facilities receiving Medicare funds. I Workplace Violence Prevention Standard 101. Workplace violence prevention standard (a) Interim final standard (1) In general Not later than 1 year after the date of enactment of this Act, the Secretary of Labor shall promulgate an interim final standard on workplace violence prevention— (A) to require certain employers in the healthcare and social service sectors, and certain employers in sectors that conduct activities similar to the activities in the healthcare and social service sectors, to develop and implement a comprehensive workplace violence prevention plan to protect health care workers, social service workers, and other personnel from workplace violence; and (B) that shall, at a minimum, be based on the Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers published by the Occupational Safety and Health Administration of the Department of Labor in 2015 and adhere to the requirements of this title. (2) Applicability of other statutory requirements The following shall not apply to the promulgation of the interim final standard under this subsection: (A) The requirements applicable to occupational safety and health standards under section 6(b) of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 655(b) ). (B) The requirements of chapters 5 and 6 of title 5, United States Code, and titles 2 and 42, United States Code. (3) Effective date of interim standard The interim final standard shall— (A) take effect on a date that is not later than 30 days after promulgation, except that such interim final standard may include a reasonable phase-in period for the implementation of required engineering controls that take effect after such date; (B) be enforced in the same manner and to the same extent as any standard promulgated under section 6(b) of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 655(b) ); and (C) be in effect until the final standard described in subsection (b) becomes effective and enforceable. (4) Failure to promulgate If an interim final standard described in paragraph (1) is not promulgated not later than 1 year of the date of enactment of this Act, the provisions of this title shall be in effect and enforced in the same manner and to the same extent as any standard promulgated under section 6(b) of the Occupational Safety and Health Act ( 29 U.S.C. 655(b) ) until such provisions are superseded in whole by an interim final standard promulgated by the Secretary that meets the requirements of paragraph (1). (b) Final standard (1) Proposed final standard Not later than 2 years after the date of enactment of this Act, the Secretary of Labor shall, pursuant to section 6 of the Occupational Safety and Health Act ( 29 U.S.C. 655 ), promulgate a proposed final standard on workplace violence prevention— (A) for the purposes described in subsection (a)(1)(A); and (B) that shall include, at a minimum, the elements contained in the interim final standard promulgated under subsection (a). (2) Final standard Not later than 42 months after the date of enactment of this Act, the Secretary shall promulgate a final standard on such proposed standard that shall— (A) provide no less protection than any workplace violence standard adopted by a State plan that has been approved by the Secretary under section 18 of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 667 ); and (B) be effective and enforceable in the same manner and to the same extent as any standard promulgated under section 6(b) of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 655(b) ). 102. Scope and application In this title: (1) Covered facility The term covered facility includes the following: (A) Any hospital, including any specialty hospital, in-patient or outpatient setting, or clinic operating within a hospital license, or any setting that provides outpatient services. (B) Any residential treatment facility, including any nursing home, skilled nursing facility, hospice facility, and long-term care facility. (C) Any non-residential treatment or service setting. (D) Any medical treatment or social service setting or clinic at a correctional or detention facility. (E) Any community care setting, including a community-based residential facility, group home, and mental health clinic. (F) Any psychiatric treatment facility. (G) Any drug abuse or substance use disorder treatment center. (H) Any independent freestanding emergency centers. (I) Any facility described in subparagraphs (A) through (H) operated by a Federal Government agency and required to comply with occupational safety and health standards pursuant to section 1960 of title 29, Code of Federal Regulations. (J) Any other facility the Secretary determines should be covered under the standards promulgated under section 101. (2) Covered services The term covered service includes the following services and operations: (A) Any services and operations provided in any field work setting, including home health care, home-based hospice, and home-based social work. (B) Any emergency services and transport, including such services provided by firefighters and emergency responders. (C) Any services described in subparagraphs (A) and (B) performed by a Federal Government agency and required to comply with occupational safety and health standards pursuant to section 1960 of title 29, Code of Federal Regulations. (D) Any other services and operations the Secretary determines should be covered under the standards promulgated under section 101. (3) Covered employer (A) In general The term covered employer includes a person (including a contractor, subcontractor, a temporary service firm, or an employee leasing entity) that employs an individual to work at a covered facility or to perform covered services. (B) Exclusion The term covered employer does not include an individual who privately employs, in the individual’s residence, a person to perform covered services for the individual or a family member of the individual. (4) Covered employee The term covered employee includes an individual employed by a covered employer to work at a covered facility or to perform covered services. 103. Requirements for workplace violence prevention standard Each standard described in section 101 shall include, at a minimum, the following requirements: (1) Workplace violence prevention plan Not later than 6 months after the date of promulgation of the interim final standard under section 101(a), a covered employer shall develop, implement, and maintain an effective written workplace violence prevention plan for covered employees at each covered facility controlled by the employer and for covered employees performing a covered service on behalf of such employer, which meet the following: (A) Plan development Each Plan shall— (i) be developed and implemented with the meaningful participation of direct care employees and, where applicable, employee representatives and collective bargaining representatives, for all aspects of the Plan; (ii) be tailored and specific to conditions and hazards for the covered facility or the covered service, including patient-specific risk factors and risk factors specific to each work area or unit; and (iii) be suitable for the size and complexity of operations at the covered facility or for the covered service, and remain in effect at all times. (B) Plan content Each Plan shall include procedures and methods for the following: (i) Identification of the individual responsible for implementation of the Plan. (ii) With respect to each work area and unit at the covered facility or while covered employees are performing the covered service, risk assessment and identification of workplace violence risks and hazards to employees exposed to such risks and hazards (including environmental risk factors and patient-specific risk factors), which shall be— (I) informed by past violent incidents specific to such covered facility or such covered service; and (II) conducted with, at a minimum— (aa) direct care employees; (bb) where applicable, the representatives of such employees; and (cc) the employer. (iii) Hazard prevention, engineering controls, and work practice controls to correct hazards in a timely manner applying industrial hygiene principles of the hierarchy of controls, which— (I) may include security and alarm systems, adequate exit routes, monitoring systems, barrier protection, established areas for patients and clients, lighting, entry procedures, staffing and working in teams, and systems to identify and flag clients with a history of violence; and (II) shall ensure that employers correct, in a timely manner, hazards identified in the annual report described in paragraph (5). (iv) Reporting, incident response, and post-incident investigation procedures, including procedures— (I) for employees to report workplace violence risks, hazards, and incidents; (II) for employers to respond to reports of workplace violence; (III) for employers to perform a post-incident investigation and debriefing of all reports of workplace violence with the participation of employees and their representatives; and (IV) to provide medical care or first aid to affected employees. (v) Procedures for emergency response, including procedures for threats of mass casualties and procedures for incidents involving a firearm or a dangerous weapon. (vi) Procedures for communicating with and training of covered employees on workplace violence hazards, threats, and work practice controls, the employer’s plan, and procedures for confronting, responding to, and reporting workplace violence threats, incidents, and concerns, and employee rights. (vii) Procedures for coordination of risk assessment efforts, Plan development, and implementation of the Plan with other employers who have employees who work at the covered facility or who are performing the covered service. (viii) Procedures for conducting the annual evaluation under paragraph (6). (C) Availability of Plan Each Plan shall be made available at all times to the covered employees who are covered under such Plan. (2) Violent incident investigation (A) In general As soon as practicable after a workplace violence incident, risk, or hazard of which a covered employer has knowledge, the employer shall conduct an investigation of such incident, risk, or hazard under which the employer shall— (i) review the circumstances of the incident, risk, or hazard, and whether any controls or measures implemented pursuant to the Plan of the employer were effective; and (ii) solicit input from involved employees, their representatives, and supervisors, about the cause of the incident, risk, or hazard, and whether further corrective measures (including system-level factors) could have prevented the incident, risk, or hazard. (B) Documentation A covered employer shall document the findings, recommendations, and corrective measures taken for each investigation conducted under this paragraph. (3) Training and education With respect to the covered employees covered under a Plan of a covered employer, the employer shall provide training and education to such employees who may be exposed to workplace violence hazards and risks, which meet the following requirements: (A) Annual training and education includes information on the Plan, including identified workplace violence hazards, work practice control measures, reporting procedures, record keeping requirements, response procedures, and employee rights. (B) Additional hazard recognition training for supervisors and managers to ensure they can recognize high-risk situations and do not assign employees to situations that predictably compromise their safety. (C) Additional training for each such covered employee whose job circumstances has changed, within a reasonable timeframe after such change. (D) New employee training prior to assignment. (E) All training provides such employees opportunities to ask questions, give feedback on such training, and request additional instruction, clarification, or other follow up. (F) All training is provided in-person and by an individual with knowledge of workplace violence prevention and of the Plan. (G) All training is appropriate in content and vocabulary to the language, educational level, and literacy of such covered employees. (4) Recordkeeping and access to plan records (A) In general Each covered employer shall— (i) maintain at all times— (I) records related to each Plan of the employer, including workplace violence risk and hazard assessments, and identification, evaluation, correction, and training procedures; (II) a violent incident log described in subparagraph (B) for recording all workplace violence incidents; and (III) records of all incident investigations as required under paragraph (2)(B); and (ii) make such records and logs available, upon request, to covered employees and their representatives for examination and copying in accordance with section 1910.1020 of title 29, Code of Federal Regulations, and in a manner consistent with HIPAA privacy regulations (defined in section 1180(b)(3) of the Social Security Act ( 42 U.S.C. 1320d–9(b)(3) )) and part 2 of title 42, Code of Federal Regulations. (B) Violent incident log description Each violent incident log shall— (i) be maintained by a covered employer for each covered facility controlled by the employer and for each covered service being performed by a covered employee on behalf of such employer; (ii) be based on a template developed by the Secretary not later than 1 year after the date of enactment of this Act; (iii) include, at a minimum, a description of— (I) the violent incident (including environmental risk factors present at the time of the incident); (II) the date, time, and location of the incident, names and job titles of involved employees; (III) identification of the alleged individual who committed the violence, in a manner consistent with HIPAA privacy regulations (defined in section 1180(b)(3) of the Social Security Act ( 42 U.S.C. 1320d–9(b)(3) )) and part 2 of title 42, Code of Federal Regulations; (IV) the nature and extent of injuries to covered employees; (V) the type of violent incident (such as type 1 violence, type 2 violence, type 3 violence, or type 4 violence); and (VI) how the incident was abated; (iv) not later than 7 days after the employer learns of such incident, contain a record of each violent incident, which is updated to ensure completeness of such record; (v) be maintained for not less than 5 years; and (vi) in the case of a violent incident involving a privacy concern case, protect the identity of employees in a manner consistent with section 1904.29(b) of title 29, Code of Federal Regulations. (C) Annual summary (i) Covered employers Each covered employer shall prepare an annual summary of each violent incident log for the preceding calendar year that shall— (I) with respect to each covered facility, and each covered service, for which such a log has been maintained, include the total number of violent incidents, the number of recordable injuries related to such incidents, and the total number of hours worked by the covered employees for such preceding year; (II) be completed on a form provided by the Secretary; (III) be posted for three months beginning February 1 of each year in a manner consistent with the requirements of section 1904 of title 29, Code of Federal Regulations, relating to the posting of summaries of injury and illness logs; (IV) be located in a conspicuous place or places where notices to employees are customarily posted; and (V) not be altered, defaced, or covered by other material. (ii) Secretary Not later than 1 year after the promulgation of the interim final standard under section 101(a), the Secretary shall make available a platform for the electronic submission of annual summaries required under this paragraph. (5) Annual report Not later than February 15 of each year, each covered employer shall report to the Secretary, the frequency, quantity, and severity of workplace violence, and any incident response and post-incident investigation (including abatement measures for the incidents) set forth in the annual summary of the violent incident log described in paragraph (4)(C). (6) Annual evaluation Each covered employer shall conduct an annual written evaluation, conducted with the full, active participation of covered employees and employee representatives, of— (A) the implementation and effectiveness of the Plan, including a review of the violent incident log; and (B) compliance with training required by each standard described in section 101, and specified in the Plan. (7) Anti-retaliation (A) Policy Each covered employer shall adopt a policy prohibiting any person (including an agent of the employer) from discriminating or retaliating against any employee for reporting, or seeking assistance or intervention from, a workplace violence incident, threat, or concern to the employer, law enforcement, local emergency services, or a government agency, or participating in an incident investigation. (B) Prohibition No covered employer shall discriminate or retaliate against any employee for reporting, or seeking assistance or intervention from, a workplace violence incident, threat, or concern to the employer, law enforcement, local emergency services, or a government agency, or for exercising any other rights under this paragraph. (C) Enforcement This paragraph shall be enforced in the same manner and to the same extent as any standard promulgated under section 6(b) of the Occupational Safety and Health Act ( 29 U.S.C. 655(b) ). 104. Rules of construction Notwithstanding section 18 of the Occupational Safety and Health Act of 1970 ( 29 U.S.C. 667 )— (1) nothing in this title shall be construed to curtail or limit authority of the Secretary under any other provision of the law; and (2) the rights, privileges, or remedies of covered employees shall be in addition to the rights, privileges, or remedies provided under any Federal or State law, or any collective bargaining agreement. 105. Other definitions In this title: (1) Workplace Violence (A) In general The term workplace violence means any act of violence or threat of violence, without regard to intent, that occurs at a covered facility or while a covered employee performs a covered service. (B) Exclusions The term workplace violence does not include lawful acts of self-defense or defense of others. (C) Inclusions The term workplace violence includes— (i) the threat or use of physical force against a covered employee that results in or has a high likelihood of resulting in injury, psychological trauma, or stress, without regard to whether the covered employee sustains an injury, psychological trauma, or stress; and (ii) an incident involving the threat or use of a firearm or a dangerous weapon, including the use of common objects as weapons, without regard to whether the employee sustains an injury, psychological trauma, or stress. (2) Type 1 violence The term type 1 violence — (A) means workplace violence directed at a covered employee at a covered facility or while performing a covered service by an individual who has no legitimate business at the covered facility or with respect to such covered service; and (B) includes violent acts by any individual who enters the covered facility or worksite where a covered service is being performed with the intent to commit a crime. (3) Type 2 violence The term type 2 violence means workplace violence directed at a covered employee by customers, clients, patients, students, inmates, or any individual for whom a covered facility provides services or for whom the employee performs covered services. (4) Type 3 violence The term type 3 violence means workplace violence directed at a covered employee by a present or former employee, supervisor, or manager. (5) Type 4 violence The term type 4 violence means workplace violence directed at a covered employee by an individual who is not an employee, but has or is known to have had a personal relationship with such employee. (6) Threat of Violence The term threat of violence means a statement or conduct that causes a person to fear for his or her safety because there is a reasonable possibility the person might be physically injured, and that serves no legitimate purpose. (7) Alarm The term alarm means a mechanical, electrical, or electronic device that does not rely upon an employee’s vocalization in order to alert others. (8) Dangerous weapon The term dangerous weapon means an instrument capable of inflicting death or serious bodily injury, regardless of whether such instrument was designed for that purpose. (9) Engineering controls (A) In general The term engineering controls means an aspect of the built space or a device that removes a hazard from the workplace or creates a barrier between a covered employee and the hazard. (B) Inclusions For purposes of reducing workplace violence hazards, the term engineering controls includes electronic access controls to employee occupied areas, weapon detectors (installed or handheld), enclosed work­sta­tions with shatter-resistant glass, deep service counters, separate rooms or areas for high-risk patients, locks on doors, removing access to or securing items that could be used as weapons, furniture affixed to the floor, opaque glass in patient rooms (which protects privacy, but allows the health care provider to see where the patient is before entering the room), closed-circuit television monitoring and video recording, sight-aids, and personal alarm devices. (10) Environmental risk factors (A) In general The term environmental risk factors means factors in the covered facility or area in which a covered service is performed that may contribute to the likelihood or severity of a workplace violence incident. (B) Clarification Environmental risk factors may be associated with the specific task being performed or the work area, such as working in an isolated area, poor illumination or blocked visibility, and lack of physical barriers between employees and persons at risk of committing workplace violence. (11) Patient-specific risk factors The term patient-specific risk factors means factors specific to a patient that may increase the likelihood or severity of a workplace violence incident, including a patient’s mental status, treatment and medication status, history of violence as known to a covered employee at a covered facility or while performing a covered service, use of drugs or alcohol as known to a covered employee at a covered facility or while performing a covered service, and any other conditions or disease processes that may cause the patient to experience confusion or disorientation, to be non-responsive to instruction, or to behave unpredictably. (12) Secretary The term Secretary means the Secretary of Labor. (13) Work practice controls (A) In general The term work practice controls means procedures and rules that are used to effectively reduce workplace violence hazards. (B) Inclusions The term work practice controls includes assigning and placing sufficient numbers of staff to reduce patient-specific Type 2 workplace violence hazards, provision of dedicated and available safety personnel such as security guards, employee training on workplace violence prevention method and techniques to de-escalate and minimize violent behavior, and employee training on procedures for response in the event of a workplace violence incident and for post-incident response. II Amendments to the Social Security Act 201. Application of the workplace violence prevention standard to certain facilities receiving Medicare funds (a) In general Section 1866 of the Social Security Act ( 42 U.S.C. 1395cc ) is amended— (1) in subsection (a)(1)— (A) in subparagraph (X), by striking and at the end; (B) in subparagraph (Y), by striking at the end the period and inserting ; and ; and (C) by inserting after subparagraph (Y) the following new subparagraph: (Z) in the case of hospitals that are not otherwise subject to the Occupational Safety and Health Act of 1970 (or a State occupational safety and health plan that is approved under 18(b) of such Act) and skilled nursing facilities that are not otherwise subject to such Act (or such a State occupational safety and health plan), to comply with the Workplace Violence Prevention Standard (as promulgated under section 101 of the Health Care Workplace Violence Prevention Act of 2018). ; and (2) in subsection (b)(4)— (A) in subparagraph (A), by inserting and a hospital or skilled nursing facility that fails to comply with the requirement of subsection (a)(1)(Z) (relating to the Workplace Violence Prevention Standard) after Blood­borne Pathogens Standard) ; and (B) in subparagraph (B)— (i) by striking (a)(1)(U) and inserting (a)(1)(V) ; and (ii) by inserting (or, in the case of a failure to comply with the requirement of subsection (a)(1)(Z), for a violation of the Workplace Violence Prevention standard referred to in such subsection by a hospital or skilled nursing facility, as applicable, that is subject to the provisions of such Act) before the period at the end. (b) Effective date The amendments made by subsection (a) shall apply beginning on the date that is 1 year after the date of issuance of the interim final standard on workplace violence prevention required under section 101.