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How do you protect your employees from violence?
By Elizabeth E. Hogue, Esq.
Home care providers owe their employees a duty of reasonable care. That is, they are responsible to take reasonable precautions to protect their employees from harm.
This obligation is becoming far easier to talk about than to fulfill. Agencies must, for example, deal with the potential for violence. The murder of a home care nurse in Maryland, along with the patient and the patient’s mother, received national attention from the media. And managers of home care agencies in more rural areas worry about the well-being of staff members in areas that are geographically isolated.
Of course, a key question regarding this obligation on the part of home care providers is: What is reasonable? Reasonableness is determined by what other home care providers are doing all across the country. Whether or not agencies are taking reasonable precautions to protect workers will be judged by comparison to what other providers throughout the country would have done under the same or similar circumstances.
This definition of reasonableness poses particular difficulty for home care providers. There is a lack of data, or even anecdotal information, about how other agencies are dealing with a number of key issues in home care, including protecting workers from harm.
Failure of agencies to fulfill their obligation of reasonable care can take different forms: acts or errors and omissions.
Providers’ obligations to employees include a requirement to avoid doing anything that causes injury or damage to them. Agencies will be found to have caused injury to employees if the damage to employees would not have occurred "but for" an act or omission by agencies.
Finally, the primary obligation of agencies is to avoid errors or omissions that cause physical injury or damage to employees. Courts generally require proof that employees were injured physically, as opposed to only emotionally, in order to compensate them for their injuries.
Agencies that fail to meet their obligations in this regard may be the target of suits for negligence by employees and/or workers’ compensation claims. Since occupational health and safety requirements include a general mandate to employers to provide a safe working environment for their employees, agencies also may face Occupational Safety and Health Administration violations when workers allege that conditions are unsafe.
It is important that managers must listen and take action when workers complain about safety hazards.
One of the strengths of the home care industry always has been that staff are willing to go well beyond the extra mile to care for patients. The perception of many who know the industry well is that workers tend to put up with safety hazards that others would not hesitate to avoid. So it becomes essential for supervisors to listen carefully to staff members who complain about safety hazards.
Most staff have a natural inclination to stay in unsafe situations, as opposed to terminating services to patients whose care involves exposure to risk.
Listen to complaints
It also is extremely important for managers to take action in response to complaints by personnel. There is an old legal adage that "every dog is entitled to one bite." This means that as soon as the dog has bitten one person, those responsible for the animal are on notice that the dog is dangerous, and they must take reasonable precautions to prevent further injury or damage.
Likewise, once employees have registered even a single complaint regarding dangers associated with the care of particular patients, the employer is on notice that further care may involve harm to workers. In view of this "first bite," so to speak, agencies must take appropriate action or face almost certain liability for injuries to their personnel.
What kinds of actions are appropriate by agencies? An increasing number of providers are, for example, using off-duty police personnel to accompany home care workers as a result of specific concerns or to areas that are generally viewed as dangerous. They usually are dressed in street clothing, but are armed with concealed guns. These so-called "escorts" have proven to be effective deterrents of injuries to workers.
Some home care personnel, however, have objected to accompaniment by escorts, in the face of situations that clearly warranted such precautions. The basis for their refusal may be that they feel that the presence of an escort interferes with their relationships with patients. They point out that there is an essential inconsistency between the caring and nurturing relationships they wish to foster with patients and their families and the use of armed escorts. Some workers also express concern about their reputations in the community, especially if they live in the community in which they make home care visits.
When escorts are offered and workers refuse them, agencies may be able to avoid liability for resulting injuries by claiming that workers assumed the risk by their refusals of assistance. From the point of view of risk management, a far better tack for agencies to take is establish and implement a policy that workers may not reject escorts when management deems that their use is appropriate.
Refusal of escorts should be defined as insubordination in agency personnel policies and procedures, and appropriate disciplinary action, including termination of employment, should be taken in response to this type of insubordination.
To provide protection for workers, many agencies provide employees with cellular telephones. Use of cell phones enhances the ability of workers to summon help in the event that they encounter danger. Provision of such equipment is rapidly becoming the norm among home care providers.
Termination of services to patients also is an appropriate response to concerns regarding the safety of home care staff members.
Home care personnel knock on the doors of thousands of patients each day unaware of what may be inside the patients’ homes.
These unknown risks likely are to become even greater as the use of home care services continues to expand. Managers and field staff must be prepared to deal with a constant potential for compromised safety.
[A complete list of Elizabeth Hogue’s publications is available by contacting: Elizabeth E. Hogue, Esq., 15118 Liberty Grove, Burtonsville, MD 20866. Telephone: (301) 421-0143. Fax: (301) 421-1699. E-mail: firstname.lastname@example.org.]