JEA 2nd quarter 2020
Legal Lines

Protecting Health Care Workers Against Violence May Impact EA Professionals

By Robin Sheridan and Kristen Chang

The federal government and individual states are currently expanding laws to protect health care workers against workplace violence and raising the penalties for causing harm to health care employees. In some instances, the legislation may provide employee assistance professionals with protections as health care workers and will almost certainly impact EA professionals counseling individuals in health care settings.

Workplace Violence
Workers in health care settings often face the risk of workplace violence as a result of their interaction with patients and clients. While patients/clients cause most of the violence, health care workers may also experience a heightened risk of violence due to the actions of family members and associates. This is because health care jobs sometimes require close contact with individuals who are unstable due to substance abuse or weapons, as well as working in stressful work environments that may trigger or negatively impact co-workers. Moreover, their work settings have greater public access and less security in terms of physical barriers and security personnel.
In fact, according to the Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor, the rate of reported workplace violence incidents that required a worker to take days off to recuperate after suffering injuries was more than four times greater in the health care industry compared to the average in all private industries combined.
Because of these significant risks, health care workers, professional associations and policymakers are looking for ways to curb violence against health care workers.

National Developments
In November 2019, the House of Representatives passed H.R. 1309, the “Workplace Violence Prevention for Health Care and Social Service Workers Act.” If it passes in the Senate, the proposed law would give OSHA 42 months to issue requirements to health care employers to implement comprehensive workplace violence prevention plans.
As proposed, the legislation defines covered health care facilities very broadly and includes all employees of all medical, correctional, residential/long-term care and non-residential facilities, and even social service settings. Accordingly, the proposed legislation would impact EA professionals employed by, or contracted to work in, a health care facility – both as a training resource and as a recipient of training. As a result, EA professionals who work in, or work for, health care facilities should monitor the proposed law.

State Developments
At the state level, legislatures, professional associations, and others are also making strides in expanding protections for health care workers. Approximately 36 states impose higher penalties on workplace violence against nurses. Currently, at least five states (California, Delaware, Florida, Oklahoma, and South Carolina) have proposed legislation related to violence against health care workers.
In January 2020, Wisconsin enacted legislation that increases penalties for harm done to nurses and health care providers in certain circumstances. More specifically, the new law makes it a felony to intentionally cause physical harm to a nurse, someone acting under a nurse’s supervision, a health care provider who works in a hospital or an individual who works in an emergency services role or setting such as an ambulance driver, emergency medical responder, or emergency department worker.

As legal developments continue, EA professionals should expect to see more legislation in this area. Consequently, EA professionals should be aware of whether such laws apply to them as health care workers under their state laws. EA professionals should also be prepared to counsel health care workers who face (or cause) violence in states with legislation that address these issues. In Wisconsin, for example, a health care provider is defined to include, among others, a psychologist, social worker, marriage and family therapist or professional counselor.

Privacy Considerations for EA Professionals who Experience Violence in the Workplace
An EA professional covered by a law mandating heightened penalties for violence against health care workers is assaulted in his or her workplace or while he or she is operating in a professional capacity may report the crime to law enforcement officials. However, the information that may be provided to law enforcement is likely limited under the HIPAA, 42 CFR Part 2 (the Substance Use Disorder rules) if applicable, and/or state privacy rules.  
While HIPAA, many state laws and 42 CFR Part 2 permit the disclosure of limited information to report a crime on the premises, the exceptions are generally limited to making the initial report. Additional information beyond that specifically identified in the laws as being acceptable in an initial report cannot be provided to law enforcement absent written authorization from the patient/client or another applicable exception in the privacy laws.
The key consideration when determining the applicability of this exception is who is initiating the disclosure. The crime on the premises exception permits the EA professional to initiate a disclosure to law enforcement to report the crime using the minimum necessary information permitted by the applicable law. It does not extend to responding to requests for information from law enforcement, even where such requests are made in order to investigate the reported crime on the premises.  

Counseling Health Care Workers who Face Violence
EA professionals who are counseling victims of health care workplace crimes should encourage their clients who, as health care workers, are subject to the privacy rules above, to report the crime to the employer so that the employer can assist the employee with a report to authorities.
An EA professional’s knowledge of the employer’s leave of absence policies and state law impacting                                                                                                                                                                crime victims will also be an important service to these clients. In addition to the federal Family and Medical Leave Act (FMLA), employees may have protection for absences under state FMLA laws and/or state victim leave laws.

Summary
Given the increased violence in virtually all workplace settings, EA professionals who are not considered health care workers under their state’s laws are encouraged to contact their local legislators and lobby for the same protections that are provided to traditional health care providers.

Editor’s note: The recommendations provided in this article are for educational purposes only and are not to be construed as actual legal advice. Always consult with a local attorney regarding specific legal matters. 

Robin Sheridan and Kristen Chang are attorneys with Hall, Render, Killian, Heath & Lyman, P.C., the largest health care-focused law firm in the country. Visit the Hall Render Blog at http://blogs.hallrender.com/ for more information on topics related to health care law.