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Illinois passes workplace violence law

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June 1, 2019

In a sweeping act of legislation that may affect the future of healthcare safety, late last year the state of Illinois passed a workplace violence prevention law that puts the onus on employers to protect healthcare workers.

It’s been a point of contention in healthcare for some time, as the industry continues to grapple with a rising epidemic of violence against hospital and clinical staff. Yet states and the federal government are hesitant to pass laws that require employers to mitigate such dangers.

The “Healthcare Workplace Violence Prevention Act” passed by the Illinois General Assembly is designed to combat the violence that regularly occurs against healthcare workers in nearly all care settings. Governor Bruce Rauner signed the legislation into law August 24, 2018, and it is currently going through the first stages of implementation.

The new law sets forth detailed rights and obligations of healthcare providers (defined as hospitals, veterans’ homes, and retail healthcare facilities) and healthcare workers, and is aimed at both ensuring personal safety and providing additional guidance regarding the provision of care to patients who are “committed persons” in custody.

Violence against healthcare workers—including verbal and physical assault—occurs in practically all care settings, with the highest number of recorded incidents taking place in areas such as psychiatric wards, emergency departments, and visitor waiting rooms, according to some reports.

While all types of healthcare workers may be victims of such violence, professionals on the front lines providing hands-on care are most frequently at risk, including nurses, nurses’ aides, physicians, nurse practitioners, and physician assistants. A recent American Nurses Association study found that over a three-year survey period, 25% of RNs and nursing students surveyed reported being physically assaulted by a patient or a patient’s family member, and 9% were concerned for their safety at work.

Officials have long been aware of a need to proactively identify and mitigate threats, which is why OSHA published the first version of its Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers more than two decades ago. (The latest version, which was updated in 2015, is available online for free: www.osha.gov/Publications/osha3148.pdf.) These voluntary guidelines, known in the industry collectively as OSHA 3148, include recommended policies and procedures to combat workplace violence in various settings.

While OSHA, The Joint Commission, and CMS don’t collectively have standards that lay out specific steps to take to prevent violence, the consensus is that the healthcare industry will eventually be regulated by standards that protect workers and patients. It’s also widely suggested that states will take the step of passing laws on workplace violence before the federal government will.

Since December 2016, OSHA has been “considering whether a standard is needed to protect healthcare and social assistance employees from workplace violence” and has requested public comments on the subject, but currently it has tabled the issue.

At least nine other states have laws requiring employers in the healthcare sector to implement workplace violence prevention policies. In 2014, California passed a law requiring healthcare facilities to, among other things, “adopt a workplace violence prevention plan as a part of its injury and illness prevention plan to protect health care workers and other facility personnel from aggressive and violent behavior.”

What does the new law protect?

The law passed in Illinois is designed to protect those on the front lines of patient care in hospitals and medical clinics. Here’s a primer of some of the law’s major points and why they are noteworthy.

Healthcare worker duty to report.

The new law requires that healthcare workers who contact law enforcement or who file a report with law enforcement against a patient or individual due to workplace violence must provide notice to the management of their employing healthcare provider within three days of contacting law enforcement or filing the report.

Why is this important?

OSHA requires healthcare employers to report injuries and deaths, and workers are invited to report unsafe work environments. This part of the rule puts the onus on providers to report when they get law enforcement involved, as a way to make sure their employers know what is going on. Employers will need to establish, and communicate to employees, the method through which such reports may be made and to whom they should be addressed. Until rules implementing the act are put in place, officials recommend healthcare providers should investigate the most reasonable options for such reporting and prepare to roll out the information to their healthcare workers.

Whistleblower protections and bar on discouraging reports.

Just as employers must allow workers to report unsafe workplaces, so must they allow healthcare workers to exercise their right to contact law enforcement or file a report in relation to workplace violence.
In addition, Illinois law protecting whistleblowers is deemed to specifically apply to healthcare providers and their employees with respect to implementing or enforcing compliance.

Why is this important?

No one wants a situation where an employee is afraid to report violence for fear of retribution. Educate management on a broad scale, including frontline staff such as charge nurses (who may not otherwise be considered “management” for employment purposes). Education will ensure that healthcare providers are able to remain in compliance with this requirement.

Posted notice requirement.

All healthcare providers in Illinois must post a notice stating that verbal aggression will not be tolerated, and that physical assault will be reported to law enforcement.

Why is this important?

Healthcare safety and security experts have said for years that one of the biggest deterrents to violence in healthcare facilities is to make it known without a doubt that violence and aggression won’t be tolerated.

Healthcare providers must conspicuously post this notice in their facilities. The size and location of the notice are not specified in the law but may be detailed as part of later rulemaking. Healthcare providers are already required to post myriad notices, and one more on violence must now be tracked as part of ongoing compliance efforts.

Post-incident services.

Healthcare providers must offer “immediate post-incident services” for healthcare workers who are directly involved in a workplace violence incident caused by patients or visitors. Such post-incident services include acute treatment and access to psychological evaluation.

Why is this important?

If something goes down, employees must be willing to provide any medical or psychological treatment to deal with it.

Just as the facilities defined as “healthcare providers” vary widely (from hospitals to veterans’ homes to retail healthcare facilities), the access to post-incident services they may provide directly will similarly vary. This new obligation will require each healthcare provider to determine how to best and most efficiently connect affected healthcare workers with such services. How such services are to be paid for, whether as part of employee health services (where available) or through other means, is not specified in the law but may be part of later rulemaking.

Violence prevention programs.

In what is perhaps the most far-reaching effect of the new law, healthcare providers must create and implement a workplace violence program that both complies with OSHA requirements many of which have long been cited as part of workplace violence studies and best practices.

Why is this important?

If you’ve been following the implementation of OSHA 3148, you’ll notice that most of what the Illinois act requires of employers closely follows OSHA’s recommendations, including the planning and implementation of a prevention program. The steps are essentially spelled out in 3148.

That’s not by accident. Until rules implementing the act are passed, however, it is not clear how detailed or stringent the workplace violence prevention programs are expected to be. For hospitals and healthcare providers that regularly provide broad-scope staff training and annual competency efforts, implementation of “one more training session” may not be overly burdensome. But for other providers—particularly those with operations in multiple states—ensuring consistent compliance with the Illinois mandate may prove more challenging. Moreover, all healthcare providers could have difficulties ensuring that “worker participation” is sufficient, likely including physicians. Healthcare providers are advised to initiate planning for the establishment and implementation of these programs even in this period before rules are issued, in order to have a framework in place that can be quickly refined.

Committed persons receiving care at healthcare providers.

Because of the potential risks in providing care to committed persons, hospitals and medical facilities are now permitted (but not required) to work with the Department of Corrections, or any county or municipality having custody. They can work together to establish protocols for receiving committed persons, particularly committed persons who are potentially violent, including juveniles.

Why is this important?

In the past, law enforcement could drop off prisoners at a hospital knowing that by law these patients would be given treatment. These new provisions help give hospitals and medical facilities a basis to open or enhance lines of communication with agencies that have custody of committed persons. This is in order to develop procedures and defined protocols to ensure facility, staff, and patient safety when caring for committed persons who are potentially or known to be violent.

Notice to treating facilities, escort by trained custodians.

Bringing committed persons, particularly those who are potentially violent, to a healthcare provider for care and treatment poses risks to staff, visitors, and the facility. Law enforcement bringing prisoners in for treatment must now do the following:

  • Take steps to notify a treating facility of significant concerns regarding the committed person (including medical and mental health information, information on recent violent actions, and/or other safety concerns)
  • Provide to “the greatest extent practicable” detailed medical records to the facility treating the committed person
  • Provide at least one guard specifically trained in custodial escort and custody of high-risk committed persons to accompany any committed person to the facility
  • Limit visitors with access to the committed person

Why is this important?

Prisoners in the healthcare facilities can be a major security issue if not properly supervised. This puts more of a legal onus on law enforcement. Providing notice and information to a treating facility in advance of bringing a committed person in for care is intended to help ensure a safe environment for staff, visitors, and other patients, and to provide appropriate care to the committed person.

Use of security restraints.

Committed persons receiving medical care and treatment outside of the Department of Corrections or county/municipal facilities are required to wear “security restraints” in accordance with the custodial agency’s procedures and rules if the custodial agency determines that the restraints are necessary. There are several reasons that restraints may be necessary: to prevent physical harm to the committed person, to address the committed person’s history of behavior of harming others or self, or to mitigate a substantial flight risk.

Why is this important?

In the past, prisoners weren’t necessarily required to be in restraints when brought into healthcare facilities, and this gives an extra layer of protection to healthcare workers until they are able to properly assess the patient.




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