Texas has now joined states like California in creating statutory protections against workplace violence against healthcare workers. Senate Bill 240, now Chapter 331 of the Texas Health and Safety Code, requires healthcare facilities in Texas to address, prevent, and respond to incidents of workplace violence in the healthcare industry.

Quick Overview

• Texas healthcare facilities must adopt workplace violence prevention policies and plans by September 1, 2024.
• Texas healthcare facilities now have defined obligations when responding to incidents of workplace violence.
• While Chapter 331 lacks a citation and penalty structure, licensing agencies may take disciplinary action against noncompliant healthcare facilities.

Who Needs to Comply?

The law applies to:

• Licensed home health service providers that employ at least two registered nurses;
• Licensed hospitals and state-run hospitals exempt 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.

Establishing a Workplace Violence Prevention Committee

If you are covered, you must establish a workplace violence prevention committee. Your committee must include at least one registered nurse and one physician licensed to practice medicine in Texas, both of whom must provide direct care to patients of the facility. The committee also must include one facility employee who provides security services. If you have an existing committee, you can add this to its duties. The committee must, at least annually, review and evaluate the prevention plan and report results of its evaluation to the governing body of the facility.

Requirements of the Workplace Violence Prevention Plan

The committee must develop a “written workplace violence prevention plan.” According to Section 331.003, the prevention plan must:

• Be based on the practice setting;
• Adopt a definition of “workplace violence” that includes:
  • an act or threat of physical force against a healthcare provider or employee that results in, or is likely to result in, physical injury or psychological trauma; and
  • an incident involving the use of a firearm or other dangerous weapon, regardless of whether a healthcare provider or employee is injured by the weapon;
• Require the facility to provide workplace prevention training or education at least annually;
• Prescribe a system for responding to and investigating violent or potentially violent incidents at the facility;
• Address physical security and safety;
• Require the facility to solicit information from healthcare providers and employees when developing and implementing the workplace violence prevention plan;
• Allow healthcare providers and employees to report incidents through existing occurrence reporting systems; and
• Require the facility to adjust patient care assignments, to the extent practicable, to prevent a healthcare provider or employee from treating a patient who has intentionally physically abused or threaten the provider or employee.

Requirements of the Workplace Violence Prevention Policy

Based upon the plan, the facility must adopt a workplace violence prevention policy. The policy must require the facility to consider the plan and evaluate any existing plan; encourage healthcare providers and employees to provide confidential information on workplace violence to the committee; include a process to protect those who provide confidential information from retaliation; and comply with the Texas Health and Human Services Commission’s rules relating to workplace violence.

The facility must make its policy available to all healthcare providers and employees upon request.

Responding to Incidents of Workplace Violence

The law sets forth what you must do when an incident of workplace violence occurs. At minimum, you must offer immediate post-incident services to the healthcare provider or employee, including any necessary acute medical treatment of those directly involved in the incident.

A facility may not discourage anyone involved in the incident from contacting law enforcement. You also cannot discipline, discriminate against, or retaliate against any person who in good faith reports an incident of workplace violence or advises a healthcare provider or employee of their right to report an incident of workplace violence.

Federal Workplace Violence Protections on the Horizon?

Currently no federal laws address these issues but there have been attempts to pass some legislation. The Workplace Violence Prevention for Health Care and Social Service Workers Act was introduced as H.R. 2663 in the House of Representatives on April 18, 2023, but the bill has not made it out of committee. H.R. 2663 would require the Secretary of Labor to “issue an occupational safety and health standard that requires covered employers within the health care and social service industries to develop and implement a comprehensive workplace violence prevention plan, and for other purposes.” A similar bill failed in the 2019-2020 Congressional session.

For its part, OSHA issued Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers in 2016, but these guidelines are advisory in nature. It is worth noting, however, that OSHA has historically interpreted the General Duty Clause of the Occupational Safety and Health Act to encompass workplace violence incidents. For instance, in June 2015, an administrative law judge affirmed OSHA’s findings that an employer violated the General Duty Clause after a mentally ill client (with a documented violent past) stabbed a healthcare coordinator to death. The ALJ noted that the employer failed to conduct a hazard assessment of the healthcare coordinator’s position, had not developed a written program to prevent workplace violence hazards, and had not trained employees on prevention mechanisms. Thus, while the guidelines are advisory in nature, OSHA may still penalize a healthcare facility for a General Duty Clause violation.

Texas Facilities — Get Your Plans and Policies in Place by September 2024

Violence against healthcare workers has long been a concern. According to the Department of Labor, healthcare workers accounted for 73% of all non-fatal workplace injuries and illnesses due to violence in 2018. With the recent nursing shortage and hazardous duties caused by the pandemic, legislation to protect these workers appears to be gaining traction.

Texas healthcare facilities have a deadline — September 2024. While Chapter 331 does not include a citation and penalty structure, Texas licensing agencies, such as the Texas Health and Human Services Commission, may take disciplinary action against noncompliant healthcare facilities. Any discipline taken against a facility or person operates “as if the person violated an applicable licensing law.”

Facilities nationwide (who do not already have a state law on this) should pay close attention. A federal standard may be coming, and OSHA can still proceed under the General Duty Clause. While you may not need to follow all of the steps in the Texas law, it may give you a roadmap to provide more protections to your employees.