Workplace Violence - What's the Law?

[traumaRUs, MSN, APRN]

Nurses want to help people and to do that they place themselves in vulnerable positions. What happens when the nurses experience workplace violence?  

Dangers on the Job

Nurses face many dangers on the job: from exposure to communicable diseases to high nurse/patient ratios to other staffing issues. However, one topic comes up consistently as a top concern - workplace violence. A group of nurses from Lakeland Healthcare System tackled this topic via a poster presentation at NTI 2019 in Orlando, Florida. Mary Watts, BSN, RN, allnurses.com's Content and Community Director led a forum on this topic to further discuss their research. Members of the group included:

• Han Estep, BSN, RN
• Kimberly Walker, MSN, APRN, AGCNS
• Lauren Morata, DNP, APRN, CCRN, CCNS
• Thaisha Soler, ASN, RN
• Leslie Wood, BSN, RN, ONC
• Morgan Perkins, BSN, RN

What Qualifies as Workplace Violence

The leading question was "what counts as workplace violence.” Is it spitting, hitting, pushing, being verbally aggressive? Do we, as nurses "excuse" workplace violence? Some of the comments included:

• " Well, they are sundowning and don't know what they are doing.”
• "A traumatic brain injury can make people act out.”
• "We must be doing something wrong, otherwise they wouldn't act this way.”
• "It's in our nature, to put the patients first.”

The panel also discussed that some diagnoses lead patients to act in a way that is not their norm. However, Han also mentioned, "the culture is sometimes that of not reporting it because we didn't get physically hurt, so it doesn't really count.” Another member stated, "it might not be reported because we (the nurses) don't want to get in trouble.”

De-escalation & Deterrents

They talked about de-escalation techniques but admitted that sometimes, "we start to de-escalate at the physical level but we really need to start when the verbal interaction escalates and not wait for it to get physical.” Their poster presentation also highlighted steps that facilities can take to deter workplace violence including:

• Staff education related to de-escalation techniques
• Adequate security staff presence and the ability for quick response anywhere in the facility
• Signage that workplace violence, to include verbal confrontations, will not be tolerated
• Leadership must be on-board with the initiatives

State Laws

Laws have been enacted in many states making workplace violence against healthcare workers a felony. In Florida, where these nurse work, it is only a felony to assault a healthcare worker in the ED or clinics. Other in-patients units do not have this protection.

The American Nurses Association lists the following states' workplace violence law summary (updated June 2019):

Quote

"At this time, OSHA does not require employers to implement workplace violence prevention programs, but it provides voluntary guidelines and may cite employers for failing to provide a workplace free from recognized serious hazards. Some states have legislated that employers develop a program while the majority of states have advanced laws that amend existing statute for assaults of first responders by adding nurses and/or increasing the penalty associated with such behavior. There is variation between states as to which settings the law applies.

Requires employer run workplace violence programs; CA, CT, IL, MD, MN, NJ, OR, WA. NY is limited to public employers only.

Reporting of incidents: WA.

Only those states with laws designating penalties for assaults that include "nurses" are reflected below:

Establish or increase penalties for assault of "nurses": AL, AK, AR, AZ, CA, CO, CT, DE, FL, GA, HI, ID, IL, IA, KS, KY, LA, MS, MO, NE, NV, NM, NY, NV, NC, OH, OK, OR, RI, SD, TN, TX, UT, VT, VA, and WV.

Note:

Some of the states are setting specific - the law applies only to the emergency department personnel or mental health/psych. FL, GA, HI, SC, SD, KY, OK apply to emergency departments only; mental health personnel (KS); public health personnel (MS)”

No one wants to feel vulnerable at work. Constantly being on the offensive is not where most nurses operate. This forum of nurses from different units speak to the widespread issue of workplace violence. We must have a line in the sand of what is acceptable and not acceptable in the workplace.

What is occurring in your workplace? Does your state and facility prosecute patients and/or visitors? What type of education have you had to prevent or de-escalate incidents?

[Asystole RN]

To clarify for everyone, there is not a state in the union where assault or battery is legal.

There may be specific circumstantial laws that define assault or battery in different ways or penalty multipliers such as the cited above but assault or battery is illegal in every single hospital, nursing home, surgical center, or other healthcare facility in the entire country.

Nurses sometimes forget that just because you are working, people still have to follow the law and if you are assaulted, regardless of penalty, you can seek justice.

Federal law>State Law>Local Law....and waaaaay down on the bottom is policy.

[tnbutterfly - Mary, BSN]

17 minutes ago, Asystole RN said:

To clarify for everyone, there is not a state in the union where assault or battery is legal.

There isn't a question of whether it is legal or not, but rather is the offense committed against a nurse or healthcare worker classified as a felony which carries a stronger penalty.

[Asystole RN]

13 minutes ago, tnbutterfly said:

There isn't a question of whether it is legal or not, but rather is the offense committed against a nurse or healthcare worker classified as a felony which carries a stronger penalty.

I get what you are saying but again, in every state of the union assault or battery can be classified as a felony depending upon the circumstances. Usually things like bodily harm, weapons, the presence of controlled substances, etc.

What those laws do is augment existing laws making certain crimes have a minimum mandatory punishment. That's good for some things but bad for others.

[Crash_Cart]

Regardless of the law, one of the big problems with charging anyone with a criminal offence is the individual will often lawyer up and retaliate by counter suing the victim.

Their lawyer will usually defend the perpetrator and issue a restraining order against the victim. The restraining order will probably have all kinds of crazy fake allegations of injury, harm and other nonsense against the nurse while the case is pending.

Nurses need to be aware that a restraining order is one of the most misused legal instruments in existence that literally strips many legal rights from perfectly innocent people everyday. To get a restraining order against a nurse doesn't need any evidence whatsoever, there's no appearance in court required, no way to defend yourself against the allegations and no jury trial. It's nothing but a mere allegation and their signature on a piece of paper claiming harm or wrongdoing took place against them.

Of course, keep in mind any kind of restraining order issued against a nurse places their license in serious jeopardy with the BON. It doesn't matter if what's on the retaining order is true or not. Any kind of allegation of violence taking place is all they need to suspend a license. Some of the language in the Nursing Practice Act even suggests any final court decisions isn't even necessary for them to reach any decision when it comes to any allegations of physical violence or harm.

So yes, they pretty much have us by the gonads and that's one of the reasons why these situations are often unreported, or otherwise swept under the carpet.

[Hoosier_RN, MSN]

Employers generally do not want employees to pursue this. Looks bad for business. Some have even suffered backlash...