California has long led the nation in addressing workplace violence via the California Division of Occupational Safety and Health’s (Cal/OSHA) Workplace Violence Prevention in Health Care standard. The federal Occupational Safety and Health Administration (OSHA) has likewise taken steps to develop a workplace violence prevention standard for healthcare settings. But it is the state of Texas that has likely surprised the nation by developing its own statute, Senate Bill (SB) 240, aimed at reducing acts of workplace violence directed against healthcare providers. SB 240 passed the Texas Legislature with overwhelming bipartisan support and is expected to be signed into law by Governor Abbott. When enacted, the new Texas law will take a different approach to the issue that may provide the basis for general duty citations in Texas until OSHA’s new standard is adopted.
- Texas healthcare facilities must be in compliance with SB 240’s provisions requiring the adoption of workplace violence prevention policies and plans by September 1, 2024.
- Senate Bill (SB) 240 lacks a citation and penalty structure, but licensing agencies may take disciplinary action against noncompliant healthcare facilities.
- The federal Occupational Safety and Health Administration has taken initial steps toward developing a workplace violence prevention standard for the healthcare industry.
When signed into law, SB 240 will go into effect on September 1, 2023 (but will not require compliance until September 1, 2024), and require each health facility to “adopt, implement, and enforce a written workplace violence prevention policy” and a “written workplace violence prevention plan.” The covered types of facilities include:
- home and community support services agencies that are licensed or licensed and certified to provide home health services and that employ at least two registered nurses;
- licensed hospitals and hospitals maintained or operated by a Texas state agency that are exempted from licensing;
- licensed nursing facilities that employ at least two registered nurses;
- licensed ambulatory surgical centers;
- freestanding emergency medical care facilities; and
- licensed mental hospitals.
Each covered facility and provider must “establish a workplace violence prevention committee or authorize an existing facility committee to develop the workplace violence prevention plan.” The committee “must include” at least “one registered nurse who provides direct care to patients of the facility” and at least “one facility employee who provides security services for the facility if any and if practicable.” SB 240 also permits “[a] health care system that owns or operates more than one facility … to establish a single committee for all of the system’s facilities if the committee develops a violence prevention plan for implementation at each facility” that is “distinctly identifiable for each facility in the system.”
Under SB 240, a covered entity’s workplace violence prevention policy must require the facility to:
- “provide significant consideration of the violence prevention plan recommended by the facility’s committee” and “evaluate any existing facility violence prevention plan”;
- “encourage health care providers and employees of the facility to provide confidential information on workplace violence to the committee”;
- “include a process to protect from retaliation facility health care providers or employees who provide information to the committee”; and
- “comply with [Texas Health and Human Services] [C]ommission rules relating to workplace violence.”
The workplace violence prevention policy must be “based on the practice setting” and must do the following (although this can be done by incorporating other policies by reference):
- adopt a definition of “workplace violence” that includes “an incident involving the use of a firearm or other dangerous weapon, regardless of whether a health care provider or employee is injured by the weapon,” and “an act or threat of physical force against a health care provider or employee that results in, or is likely to result in, physical injury or psychological trauma”;
- “require the facility to provide at least annually workplace violence prevention training or education that may be included in other required training or education provided to the facility’s health care providers and employees who provide direct patient care”;
- “prescribe a system for responding to and investigating violent incidents or potentially violent incidents at the facility”;
- “address physical security and safety”;
- “require the facility to solicit information from health care providers and employees when developing and implementing [the] workplace violence prevention plan”;
- “allow health care providers and employees to report incidents of workplace violence through the facility’s existing occurrence reporting systems”; and
- “require the facility to adjust patient care assignments, to the extent practicable, to prevent a health care provider or employee of the facility from treating or providing services to a patient who has intentionally physically abused or threatened the provider or employee.”
In many respects, the Texas law deviates from Cal/OSHA’s Workplace Violence Prevention in Health Care standard and the anticipated federal OSHA corollary, inasmuch as it does not contain a citation and penalty structure, as the OSHA programs do, though violations of the law may result in impacts to facilities’ licensure. And, if OSHA does not finalize a workplace violence standard in healthcare, the Texas statute will likely establish an industry standard for covered healthcare entities. Finally, like the OSHA programs, it contains protections for providers or employees who file complaints about workplace violence. It does not, however, provide an express remedy for employees who are allegedly retaliated against. While unlikely, Texas courts may interpret SB 240 as impliedly creating an exception to Texas’s at-will employment doctrine.
Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor SB 240 and other state and federal efforts to reduce and prevent workplace violence and will post updates on the Workplace Safety and Health blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.