The Tenth Circuit recently issued two companion decisions confirming the Occupational Safety and Health Administration’s (“OSHA”) authority to cite employers for workplace violence hazards under the General Duty Clause of the Occupational Safety and Health Act, 29 U.S.C. § 654(a)(1) (“General Duty Clause”). In both cases, the Tenth Circuit upheld OSHA’s enforcement actions and the citations issued in connection with workplace violence incidents in a psychiatric hospital.

Case Background

Both cases stem from OSHA’s investigation into a psychiatric hospital after reports of escalating patient-on-staff violence. Acting under the General Duty Clause, which requires employers to provide employees with a workplace “free from recognized hazards that cause, or are likely to cause, serious physical harm or death,” OSHA cited the hospital for failing to implement feasible protective measures. OSHA identified multiple deficiencies, including the failure to: provide communication devices; maintain adequate staffing; implement the hospital’s existing workplace violence prevention program; secure patient belongings; employ personnel trained in security; and conduct post‑incident investigations.

OSHA issued a citation and assessed a $13,494 penalty. An administrative law judge upheld the citation and penalty. After the Occupational Safety and Health Review Commission declined review, the hospital petitioned for judicial review in the Tenth Circuit.

Analysis

The Tenth Circuit held that OSHA had full authority to issue the citation despite overlapping federal regulations. Although the hospital argued that the Centers for Medicare and Medicaid Services (“CMS”) already exercised regulatory authority over safety-related issues, the Tenth Circuit found that CMS’s role is directed at patient safety, not employee safety, and therefore did “nothing” to displace OSHA’s broad authority to address workplace violence hazards.

Additionally, the Tenth Circuit rejected the hospital’s argument that OSHA failed to provide sufficient notice of what was required to abate the hazard. OSHA’s citation explained terms such as “adequate staffing” and “specialized security,” and incorporated definitions already contained in the hospital’s own policies. This alignment with the hospital’s existing procedures reinforced the adequacy of notice.

The Tenth Circuit found that OSHA met its burden of establishing technological and economic feasibility. Expert testimony, industry standards and the hospital’s own corrective actions taken after receiving the citation provided ample support for the feasibility of the proposed abatement measures.

As it relates to the hospital management company’s citation, the Tenth Circuit upheld OSHA’s determination that the management company exercised sufficient operational control over workplace violence prevention to be treated as an employer for OSHA purposes. The entities shared the worksite and integrated their safety operations. Specifically, the management company required staff to attend workplace violence training, provided incident reporting forms, compiled injury‑trend data and reviewed and approved the hospital’s workplace violence prevention plan. Additionally, because both entities were owned by the same parent company and operated in an integrated manner, the Tenth Circuit concluded that OSHA could hold the management company liable for the citation and penalties.

Practical Takeaways

  • OSHA will continue to regulate workplace violence in health care, even where CMS or other agencies have their own patient care standards.
  • Employers’ own written workplace violence policies may be used as evidence of feasibility, meaning OSHA can cite employers for failing to follow the protections they have already identified internally.
  • Management companies and parent‑level affiliates may face OSHA liability where they direct, influence or integrate safety practices at the worksite, even if they do not directly employ frontline staff.