UHS of Fuller, Inc., UHS of Delaware, Inc., OSHRC DOCKET No. 20-0032

After receiving a complaint about workplace violence at a psychiatric hospital, the Occupational Safety and Health Administration (“OSHA”) directed Compliance Safety and Health Officer Kadis (“CO Kadis”) to commence an inspection of a facility that provides psychiatric care services (the “Worksite”). The Worksite includes an in-patient psychiatric hospital and facilities for outpatient programs where individuals receive psychiatric care while living elsewhere.1 OSHA’s investigation continued for several months. On December 11, 2019, a Citation and Notification of Penalty (“Citation”) was issued to UHS-Fuller, and an affiliate, UHS-DE (collectively with UHS-Fuller, “Respondents”), alleging that they failed to ensure the adequate protection of employees in violation of Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651-678 (the “OSH Act”).2

Respondents timely contested the Citation bringing the matter before the Occupational Safety and Health Review Commission (“Commission”).3 A hearing commenced on July 26, 2021 and concluded on August 10, 2021. All parties filed opening, reply, and supplemental briefs after the hearing.4

The Citation asserts that employees were exposed to physical attacks from aggressive patients in violation of section 5(a)(1) of the OSH Act, the provision commonly known as the general duty clause.5 29 U.S.C. § 654(a)(1). Among other circumstances, the Citation alleges employees were attacked and injured during behavioral health emergencies, while breaking up fights among patients, and while assisting co-workers with patients.6

UHS-DE and UHS-Fuller stipulated that physically violent or assaultive patients created a hazard for those at the Worksite.7 There were over 500 incidents of aggression from June 1, 2019, through the end of 2019.8 “Staff injuries from patient violence and/or assaults by patients against staff can result in serious injuries, and have so resulted.”9 Employees were punched in the head (and elsewhere), kicked, slapped, bitten, had their hair ripped out, and were scratched by patients with bloodborne diseases.10 Many incidents resulted in serious injuries that required follow-up medical care, days away from work, and job changes.11 To provide one example, on July 18, 2019, several workers suffered injuries when they had to address multiple violent and aggressive patients. (Exs. S-24, S-178, S-436 thru S-441.) The workers were unable to address the violence themselves and had to contact the local police department for assistance.12 The injuries employees suffered from this incident included concussions, bites, a strained shoulder, and a bruised scalp. (Exs. S-24, S-397 at 8-9.) While the number of patient attacks on staff varied month to month, such events consistently occurred. (Exs. S-1, S-1B, S-2, S-27 at 2, 7, RF-32 at 4, RF-33.)

The key issues in dispute are: (a) whether UHS-DE and UHS-Fuller should be considered a single employer for purposes of the cited violation at the Worksite; (b) whether additional sanctions are warranted for the destruction of electronically stored information (“ESI”) before the hearing; and (c) whether the Secretary established a violation of the general duty clause.

For the reasons discussed below, the Citation is AFFIRMED as to UHS-Fuller and UHS-DE as a serious violation of the OSH Act, and a $13,494 penalty is assessed. Additional relief is granted in response to the Secretary’s July 2, 2021 Motion in Limine Concerning Respondents’ Extensive Destruction of Highly Relevant Video Footage (“Motion in Limine”) and the Secretary’s Sanctions Motions regarding UHS-Delaware’s failure to timely comply with prehearing discovery obligations is granted in part and denied in part.13

I.Jurisdiction

Respondents filed timely Notices of Contest, bringing this matter before the Commission. (Stip. 7.) UHS-Fuller and UHS-DE are both employers affecting interstate commerce within the meaning of 29 U.S.C. § 659(c).14 Both are employers under the OSH Act. (Stips. 1-2, 5, 34-36.) Based upon the record, including the parties’ explicit acknowledgment that they are employers and subject to the Commission’s jurisdiction, the undersigned finds that the Commission has jurisdiction over the parties and the subject matter of this case.15

II.Preliminary Matters

This section: (a) addresses why UHS-DE and UHS-Fuller should be considered a single employer for purposes of the Citation; (b) grants, in part, the Secretary’s Motion in Limine by finding that additional sanctions against Respondents are warranted for the destruction of ESI; and (c) rejects Respondents’ vindictive prosecution claim.

II.A.Single Employer

Universal Health Services, Inc. (“UHS”) is a publicly traded company with no direct employees. (Tr. 1483-84, 1648-49.) Instead, it operates through its wholly owned management company, UHS-DE, and other subsidiaries.16 UHS-DE provides services for UHS-Fuller and other subsidiaries UHS wholly owns. Id. Susan Bullick, the Director of Loss Control for UHS-DE, explained that UHS-DE “is the managing part of the hospitals that are owned by UHS.” (Tr. 1000, 1598, 1649.)

One such hospital is the Worksite.17 It is an in-patient psychiatric hospital with a maximum capacity of 102 patients.18 There are six in-patient psychiatric units, including an adolescent unit, a developmental disabilities unit, and adult care units. (Stip. 10; Exs. S-397 at 2-3; S-24 at 5.) There is also a lobby, courtyard, and cafeteria. (Ex. S-397 at 3.) Access to the patient care units is controlled, but patients can generally move freely around the common areas of the units to which they are assigned. (Tr. 212.)

Patients with behavioral and mental illnesses receive therapeutic care at the Worksite. (Stip. 25; Tr. 212, 536.) Most patients are there on an involuntary basis.19 Under the involuntary commitment process, typically, patients are either (1) at imminent risk of harming themselves or others, or (2) cannot care for themselves in the community because of psychiatric illness. (Tr. 2293-94.)

The Worksite is led by Chief Executive Officer (“CEO”) Rachel Legend, a UHS-DE employee.20 Ms. Legend is joined by three other UHS-DE employees who also have offices at the Worksite: Jim Rollins, the Chief Financial Officer (“CFO”), Robin Weagley, the Chief Operations Officer in training (“COO”), and Gina Bricault, a UHS-DE Loss Control Manager. (Stip. 49; Tr. 399, 490, 1123, 1299, 2511, 2701.) UHS-Fuller employs the other workers at the Worksite. This includes the current Director of Risk and Quality, Jill MacCormack, the person in that role at the start of OSHA’s investigation, Jessica Gosselin, the Medical Director, Dr. Haltzman, Mental Health Specialists (“MHSs”), nurses, doctors, and other healthcare professionals, such as pharmacist, pharmacy techs, and social workers, among others. (Tr. 2524-25.)

Although UHS-DE and UHS-Fuller are separately incorporated, the Secretary maintains that both entities are responsible for the violation. (Sec’y Br. 48, 59; Sec’y Reply Br. to UHS-DE Br. 11-12; Sec’y Suppl. Br. 3; Tr. 486, 489, 491.) Both entities employed workers exposed to the cited hazard at the Worksite.21 Still, UHS-DE disavowed any responsibility for the violation, even if UHS-Fuller was appropriately cited.22

The OSH Act defines an “employer” as “a person engaged in a business affecting commerce who has employees” and further defines a “person” as “one or more individuals, partnerships, associations, corporations … or any organized group of persons.” 29 U.S.C. § 652. In certain circumstances, the purposes of the OSH Act, including effective enforcement, “are well served” by holding two separate legal entities equally responsible for one violation.23

UHS-DE contends that the appropriate analysis is whether two entities are so interrelated and integrated that piercing the corporate veil is warranted.24 In the veil-piercing context, the analysis encompasses all aspects of operations, and two entities can be considered one for all purposes. Here, what the Secretary seeks is much more narrow. So is the analysis. The Secretary does not deny that some corporate formalities were observed and accepts that UHS-DE and UHS-Fuller are legally distinct. (Stips. 5, 34, 38.) He does not contend that UHS-DE is liable for anything UHS-Fuller does. He does not maintain that UHS-DE is responsible for any future violation of the OSH Act. Nor do his claims extend to other facilities with whom UHS-DE has a relationship. The Secretary’s claims relate to this Worksite’s handling of health and safety matters during the relevant inspection period and whether two legally distinct entities should be held jointly responsible for one violation of the OSH Act.

In matters like this, to determine whether separate corporations operate as a single employer within the meaning of the OSH Act, the Commission examines three factors. A.C. Castle, 882 F.3d at 41-42 (discussing the Commission’s three-prong single employer test); UHS Pembroke, 2022 WL 774272, at *2. First, do the entities share a common worksite? Id. Second, are the entities interrelated and integrated with respect to safety and health matters? Id. Third, do the entities share a common president, management, supervision, or ownership? Id. The Secretary bears the burden of establishing a single-employer relationship. Id. See also Loretto, 23 BNA OSHC at 1358 n.4.

The parties disagree on whether all three factors must weigh in favor of finding a single-employer relationship. See Solis v. Loretto-Oswego Residential Health Care Facility, 692 F.3d 65, 76 (2d Cir. 2012) (“It is not clear … whether all three of the Commission's factors must be met in order to find that several entities did handle safety matters as one company”). Resolving this is unnecessary as the Secretary showed all three factors weigh in favor of concluding that a single employer relationship existed within the meaning of the OSH Act and both entities should be held jointly responsible for the single violation.

II.A.1.Common worksite

UHS-DE’s “corporate offices” were not at the Worksite, and it was not common for UHS-Fuller employees to work at UHS-DE’s corporate offices in King of Prussia, Pennsylvania.25 However, a common business address or headquarters is not necessary to find there was a common worksite.26

The lack of a shared headquarters is not persuasive because of the presence and deep involvement of UHS-DE employees in critical aspects of operations, particularly those related to employee health and safety at the Worksite. See A.C. Castle, 882 F.3d at 42 (noting that while a shared headquarters or business address “generally satisfies the common worksite factor,” it is not “necessary,” and requiring such would rewrite the test); UHS Pembroke, 2022 WL 774272, at *3. In Loretto, the management company had “no physical presence” at the inspected nursing home, was rarely onsite, and was not involved in the facility’s day-to-day operations. 23 BNA OSHC at 1361.

In contrast, multiple UHS-DE employees worked at the inspected location, and Respondents acknowledge that both entities’ employees were exposed to workplace violence at the Worksite. (Stips. 19, 20.) Indeed, the CEO is a UHS-DE employee whose office is at the Worksite.27 She is routinely present at the Worksite, supervising UHS-Fuller employees and overseeing its day-to-day operations.28 Three other UHS-DE employees were based at the Worksite and held key leadership roles. Ms. Bricault, a UHS-DE Loss Control Manager, handles various Worksite safety matters, including workplace violence. (Tr. 1123-26, 1299.) The CFO, who oversaw financial matters, and the COO, were also UHS-DE employees working at the Worksite. (Tr. 399, 493, 1416, 1422, 2701, Ex. S-81.) In addition, for long stretches of time between 2018 and 2020, a UHS-DE employee supervised the Director of Nursing (“DON”).29

These UHS-DE employees consistently work alongside UHS-Fuller employees at the inspected location and are integral to the Worksite’s day-to-day operations. (Tr. 399, 401-2, 425, 614-15, 1299, 2510, 2701, 2703, 3109.) Their involvement includes hiring, firing, and managing hospital staff. Id. They have direct and oversight responsibilities for worker safety, including the hazard of workplace violence.30

This overlap of supervision and management at the Worksite distinguishes this matter from S. Scrap Materials Co., 23 BNA OSHC 1596 (No. 94-3393, 2011). Here UHS-DE’s handpicked supervisors oversaw the work of the UHS-Fuller employees at the Worksite daily. So, this matter is analogous to the situations in C.T. Taylor and UHS Pembroke. 20 BNA OSHC at 1087; 2022 WL 774272, at *3-6 (finding the presence of one UHS-DE employee and involvement of additional UHS-DE employees sufficient to show a common worksite). For these reasons, the common worksite factor supports finding a single-employer relationship.

II.A.2.Interrelation and Integration

The second element looks at the interrelation and integration of the two entities. UHS-DE acknowledges extensive involvement with UHS-Fuller’s management but contends this should not be determinative because it played a limited role in patient care and provided services pursuant to a Management Services Agreement (“MSA”). (UHS-DE Br. 1, 2, 4, 34, UHS-DE Suppl. Br. 10-11, 18-19; Stip. 37.) The Secretary counters that UHS-DE and UHS-Fuller were well integrated with overlapping responsibilities in key areas and the existence of an MSA does not preclude finding that the two entities should be treated as a single employer in connection with an OSH Act violation.

II.A.2.a.Overlapping Areas of Responsibility

Respondents were well integrated in connection with employee health, safety, and other operational matters. UHS-DE was directly involved in overseeing Worksite staff. CEO Legend managed clinical care, staff engagement, and regulatory compliance.31 With the CFO and COO, she was involved in daily operational flash meetings and other leadership meetings. (Tr. 395, 398-99.) At these meetings, she and the others reviewed patient aggression, workplace violence, and staffing. Id. She was involved in physician hiring and firing (if needed) and heard complaints about understaffing at the Worksite. (Tr. 2369, 2709-10.) She was aware that staff claimed they were forced to work through breaks but denied that it was necessary for MHSs to work through breaks. (Tr. 2734, 2750, 2753.)

Ms. Legend and other UHS-DE employees led key committees for the Worksite, including its Board of Governors and Patient Safety Council.32 These committees reviewed issues related to the hazard, such as patient aggression, physical confrontations, and employee injuries. (Tr. 406-7, 1403, 2345-47.) Ms. Legend or the CFO also led periodic town hall meetings during which safety was a topic.33 The Worksite’s workplace violence prevention plan (“WVPP”) indicates the CEO, or her designee, is to “coordinate all safety and security management activities.”34

At least one UHS-DE employee attended the daily flash meetings, which included discussions about all employee injuries. (Tr. 397-401, 947-50, 1297.) In addition, another UHS-DE employee, Ms. Bricault, spoke to certain injured employees and received clinical consultation reports for all employees who reported injuries and sought care.35 She reviewed videos of reported workplace violence incidents to confirm how they occurred.36

Ms. Bricault was based at the Worksite and her primary role was safety. (Tr. 1123, 2934-36.) She performed periodic safety walk-through surveys, completed Worksite assessments, and tracked injury data.37 She compared the injury data she tracked to UHS-DE benchmarks. (Tr. 1266-68.) She prepared summaries and held regular meetings with UHS-Fuller leadership to discuss safety, patient aggression and injury data.38 She made sure that OSHA logs were signed and posted.39 She assisted with the development of the Worksite’s WVPP. (Tr. 1129-30; Ex. S-99.) UHS-DE expected Ms. Bricault to follow its standardized expectations for Loss Control Managers.40 It had a standard template for all loss control visit reports, which included a section on “Managing Patient Aggression Program Assessment.”41 The template also provided general information on the general duty clause, OSHA’s expectations surrounding workplace violence and ergonomics, and other safety topics. (Ex. S-121 at 5.)

Many of the “resources” UHS-DE provided were directly related to the cited hazard.42 They include OSHA’s expectations surrounding workplace violence and a checklist to confirm the scope of a facility’s WVPP.43 The checklist asked about safe staffing, camera review of incidents, staff involvement in injury prevention initiatives, and post-incident debriefing.44

UHS-DE trainers and others could visit the Worksite to conduct training and perform assessments.45 The Preventing Workplace Violence training materials UHS-Fuller used came from UHS-DE.46 UHS-DE also developed verbal de-escalation training for Worksite employees. (Tr. 1582-83.) For Handle With Care (“HWC”) training, UHS-DE contracted with a third party on behalf of UHS-Fuller. (Tr. 1584.) UHS-DE trainers also can assist with the annual renewal process for HWC training. (Tr. 1581-82.) Ms. Bricault also provided training on aggression to supervisors at the Worksite using materials developed by a department of UHS-DE. (Tr. 1137-39, 1148-49, 1153, 1668; Exs. S-39, S-94, S-156, S-158, S-162.)

UHS-DE had responsibility for the Worksite’s financial matters. The CFO, a UHS-DE employee, handled the “financial activity” of UHS-Fuller, including accounts payable, payroll, and the billing department.47 UHS-DE paid UHS-Fuller’s taxes and purchased insurance for it. (Tr. 506-8, 510-11.) UHS-Fuller had to obtain UHS-DE approval for capital expenditures above certain threshold amounts. (Tr. 387.) Sometimes UHS-DE would buy the requested items directly. Id. As the expenditure increased, UHS-Fuller had to obtain additional approvals from UHS-DE employees before incurring the expense. (Tr. 387-90.)

UHS-DE employees also drafted UHS-Fuller’s yearly budget and strategic plan.48 During the budgeting process, UHS-DE would generate a target number of employees per patient that UHS-Fuller aimed to stay at or below. (Tr. 375-76.) Meeting the budget targets increased the salaries of the CEO and CFO. Ms. Legend could earn a bonus of up to the total amount of her baseline salary by exceeding the established budgetary targets, including through budgetary efficiencies. (Tr. 426-28.)

UHS-DE, with the assistance of a third-party contractor it retained, Sedgwick, managed workers’ compensation, the compilation of OSHA logs, accident reporting, clinical consultations for injured employees, a workers’ compensation budget, and a system of chargeback or absorption of claims related to worker injuries.49 An appropriate number of workers’ compensation claims for each facility was determined after discussions among UHS-DE employees, the facility’s CEO (or her designee), and the UHS-DE Loss Control Manager. (Tr. 1661-62.) There were financial incentives for meeting this target. (Tr. 1663.) UHS-DE also handled the payment of workers’ compensation claims that met particular criteria. (Tr. 1657-61, 1731.)

UHS-DE was responsible for the Worksite’s information technology (“IT”).50 The email addresses of UHS-DE and UHS-Fuller employees all end in “UHSinc.com” and are part of the same server. (Stip. 42, Tr. 1330; Exs. S-258, S-260, S-261.) UHS-DE controlled the servers and networked drives at the Worksite. (Stips. 42-43; Tr. 383-85, 433-34.) UHS-Fuller staff saved documents to these drives, and UHS-DE could access the drives and emails of any employee. Id.

UHS-DE had a compliance committee and a compliance department that oversaw the observance of various regulatory requirements and adherence to loss control policies at its affiliates. (Tr. 1540, 1560-62, 3047, Exs. S-34, S-35, S-79, S-459.) It maintained a compliance hotline to receive anonymous complaints. (Tr. 1547-48, 2754-55.) These complaints would lead to investigations at facilities it managed. Id. UHS-DE had a Code of Conduct and required UHS-Fuller employees to adhere to it. (Tr. 1431, 1435-36.) The Code of Conduct requires UHS-Fuller employees to follow “all state, federal, and local environmental and workplace safety laws, regulations and rules, including those promulgated by the Environmental Protection Agency and [OSHA].” (Ex. S-82 at 14.)

UHS-DE claims no role in medical or clinical care at the Worksite.51 This claim is incorrect. Clinical care was not UHS-Fuller’s exclusive domain. Ms. Johnson, UHS-DE’s Chief Clinical Officer, described the services UHS-DE provided, as including “services that support clinical excellence and support a safe and quality environment for patients.” (Tr. 1598.) UHS-DE assigned each facility a UHS-DE Director of Clinical Services, whose responsibilities included visiting the Worksite.52 A UHS-DE employee also supervised UHS-Fuller’s Director of Nursing (DON) and Assistant Director of Nursing (ADON) for long periods in the two years preceding the Citation.53 This supervision included visits to the Worksite, discussions of patient care, staffing, root cause analyses, and addressing other patient care issues. (Tr. 1579, 1616, 1637, 1653-54; Ex. S-120.) The UHS-DE employee’s responsibility was to make sure the DON or ADON was comfortable and confident in her work and to ensure the Worksite met the Centers for Medicare and Medicaid Services (“CMS”) requirements. (Tr. 1615-17; Stips. 14, 15.)

Besides the oversight of the DON, the Medical Director also reported to UHS-DE’s employee, CEO Legend. (Tr. 505, 2322, 2328.) She hired and could fire the Medical Director or other physicians after consultation with other UHS-DE employees. (Tr. 1461-62, 2330, 2709-10.) Ms. Legend indicated her responsibilities included “clinical care.” (Tr. 2345.) She discussed staffing levels for patient units, including whether constant (1:1) supervision should be removed.54 She visited the patient care units daily and interacted with patients. (Tr. 2367-68, 2728.) The CFO came to the units once or twice a week to check plant operations or respond to codes. (Tr. 391, 393.) UHS-DE Senior Vice President Gilberti worked on the recruitment, hiring, and potential termination of physicians. (Tr. 1461-62.) He signed contracts for new physicians and chaired the committee that voted on whether to accept or renew contracts for the medical staff.55

While there is no evidence of UHS-DE employees directly writing medical orders, they reviewed medication orders and treatment plans in consult with UHS-Fuller employees. (Tr. 2328-29, 2478.) For example, Ms. Legend described the response of “leadership” to a workplace violence incident.56 The response included looking at medication orders to “ensure they’re there” and to “see if they need to be updated.” (Tr. 2478.) In discussing the Restraint Reduction Initiative, Ms. Legend explained, “we created PRN order sets, which are as-needed order sets for every patient at admission.” (Tr. 2360.) These PRN order sets were required. Id. If there were no medical orders to address patient aggression, she would work to “rectify the situation.”57

In addition, before a patient can be mechanically restrained, staff must contact the DON or the Administrator on Call (“AOC”). (Tr. 2360, 2577; Ex. RF-33 at 4.) The AOC role rotated among various senior leaders, such as the CEO, CFO, and COO, who were all UHS-DE employees. (Tr. 424-25, 2360.) Similarly, the leadership team, which included UHS-DE employees, regularly responded to calls for assistance in the patient care units to help and provide guidance.58

Moreover, even if UHS-DE had no role in clinical care that would not preclude finding a single employer relationship for purposes of the OSH Act. The two entities acted in an interrelated and integrated manner on employee health and safety. Shared control over safety concerns is a persuasive factor when determining whether it is appropriate to impose liability for violations of the OSH Act on more than one employer at a worksite. C.T. Taylor, 20 BNA OSHC at 1087; Loretto, 692 F.3d at 76; UHS Pembroke, 2022 WL 774272, at *3.

II.A.2.b.Management Services Agreement (MSA) – Not Determinative

UHS-DE argues it only provides management services to UHS-Fuller pursuant to the MSA. (Ex. S-21; UHS-DE Br. 15-16, 34-40.) Although relevant, the MSA is not determinative on the issue of single employer. See Loomis Cabinet Co. v. Sec’y of Labor, 20 F.3d 938, 942 (9th Cir. 1994) (discounting the contract and emphasizing “the substance over the form of the relationship” when assessing whether there was an employer/employee relationship); Manua’s, Inc. d/b/a Manua’s Discount Store, No. 17-1208, 2018 WL 4861362, at *13 (OSHRC Sept. 28, 2018) (finding the OSH Act, not the contract, determines responsibility), aff’d, 948 F.3d 401 (D.C. Cir. 2020). What matters is how the relationship works in practice. Id. When the focus is on that question, it is evident that Respondents’ description of their relationship understates the degree of interrelation and integration on employee health and safety matters. See UHS Pembroke, 2022 WL 774272, at *5 (finding a single employer relationship despite the existence of a management agreement between two entities).

The MSA demonstrates a lack of arm’s length negotiation between UHS-Fuller and UHS-DE: both signatories are UHS-DE employees.59 See Altor, Inc. v. Sec’y of Labor, 498 F. App’x 145, 148 (3d Cir. 2012) (unpublished) (finding that the single employer test leads to an examination of whether the entities exhibited “a lack of arm’s length dealing”). The CFO was unfamiliar with the MSA and could not recall ever seeing it. (Tr. 477, 480, 482.) The existence of the MSA in this context is not persuasive. See UHS Pembroke, 2022 WL 774272, at *5 (discussing the management agreement between UHS-DE and a behavioral health hospital).

Ms. Legend and other UHS-DE employees involved with the Worksite had ultimate command over critical aspects of UHS-Fuller, and all were employed by and acted on behalf of UHS-DE. By serving in senior leadership roles, UHS-DE charged them with running crucial elements of the Worksite’s operations, including employee health and safety. See A.C. Castle, 882 F.3d at 39-41 (finding a single employer relationship when the owner of a general contractor exercised an unusual amount of control over the subcontractor’s actions and the subcontractor was an employee of the general contractor).

The lack of evidence of UHS-DE providing management services to any unaffiliated entity further bolsters the Secretary’s argument that operations between the two entities were well-integrated when it came to employee safety and health. See Altor Inc., 23 BNA OSHC 1458, 1464 (No. 99-0958, 2011) (the fact that two entities always did business together favored finding a single employer relationship), aff’d, 498 F. App’x 145 (3d Cir. 2012) (unpublished). Here, multiple UHS-DE witnesses described working with other UHS-affiliated entities. (Tr. 354-55, 614-15, 1122-23, 1394, 1398, 1437, 1499, 1521, 1537, 1548, 1571, 2701, 2707.) None worked with unaffiliated entities. Id. Likewise, there is no evidence of UHS-DE providing its “suite of services” to entities unaffiliated with its corporate parent, UHS. (Tr. 428, 1536.)

UHS-DE maintains that it would continue to exist even if UHS-Fuller ceased operations.60 The ability of entities to operate independently on other projects does not determine whether two employers should be considered a consolidated entity for purposes of an OSH Act violation at a particular worksite. C.T. Taylor, 20 BNA OSHC at 1087 n.7. Instead, the Commission focuses on the relationship at the worksite with the cited hazard. Id. See also Altor, 23 BNA OSHC at 1464. When the focus is on how UHS-DE and UHS-Fuller interacted at this Worksite, there is substantial evidence of their interrelation and integration, particularly for safety matters.

II.A.3.Common Management, Supervision, or Ownership

Both UHS-DE and UHS-Fuller are subsidiaries of the same corporate parent, UHS. (Tr. 1483-84; Corp. Discl. Statement.) See Wal-Mart Stores, Inc. v. Sec’y of Labor, 406 F.3d 731, 737 (D.C. Cir. 2005) (relying on the fact that two stores had the same “controlling corporation” to support a repeat characterization). When reporting to the Securities and Exchange Commission, UHS consolidates all profits from the Worksite with those from all the other UHS-DE managed facilities. (Tr. 428.)

The senior leadership for the Worksite, i.e., the CEO, CFO, and COO, are all employees of UHS-DE.61 UHS-DE makes the disingenuous claim that these employees do not perform corporate management functions for UHS-DE and do not supervise other UHS-DE employees. (UHS-DE Br. 3.) In contrast to that claim, Ms. Legend described the management, supervision, and oversight functions she provides for two UHS-DE affiliated hospitals. (Stip. 40; Tr. 2706-9, 2344-49.) She supervised UHS-Fuller’s CFO and other UHS-DE employees at the Worksite. (Tr. 357-58, 614, 1436, 2709.) Ms. Legend was overseen by UHS-DE Senior Vice President Gilberti.62 The CFO reported financial information monthly to Ms. Legend and another UHS-DE employee.63 These reports described all variances from the budget goals, including those goals related to staffing. (Tr. 379-80.) His monthly reports also included risks related to aggression. (Tr. 380.) The involvement of multiple UHS-DE employees in the finances undercuts UHS-DE claims about the extent to which UHS-Fuller manages its financial affairs. (UHS-DE Br. 37-38, 39, n.4.)

The CEO, CFO, and COO all engage in tasks to benefit their employer, UHS-DE, and UHS-Fuller. Besides those employees based at the Worksite, other UHS-DE employees routinely visited the location, including employees from UHS-DE’s nursing, risk management, milieu management, clinical services, clinical training, and loss control divisions. (Tr. 1244-45, 1278-79, 1444, 1493, 1570, 1572-74, 1579, 3430-3; Exs. S-51 thru S-63, S-74.)

UHS-DE suggests that there had to be parity where the employee served as a leader for both UHS-Fuller and UHS-DE. That is not the test. Common management can mean that one entity’s employee oversees the other entity's financial, executive, or operational aspects. UHS Pembroke, 2022 WL 774272, at *5-6. The focus is on the relationship between the entities at the relevant worksite for the citation. Id.; C.T. Taylor, 20 BNA OSHC at 1087 n.7.

UHS-DE points to a case addressing the common-law agency doctrine about whether an employment relationship existed between a worker and an entity, FreightCar Am., Inc., No. 18-0970, 2021 WL 2311871 (OSHRC Mar. 3, 2021). (UHS-DE Br. 4, 28, 34, 45-46.) Unlike the situation in FreightCar, Respondents here stipulated that: (1) both entities recognized the cited hazard, and (2) employees of both entities were exposed to the cited hazard. (Stips. 19-24.) UHS-DE’s extensive onsite involvement with safety, including the hazard at issue (workplace violence), also distinguishes this matter from FreightCar.64

The cited entities are linked through the CEO, CFO, and other UHS-DE employees. Key oversight committees were either led by or had UHS-DE employees as members. Both share the same ultimate corporate parent. In short, UHS-DE was integrally involved in the Worksite’s day-to-day management, including with safety and core business functions. See UHS Pembroke, 2022 WL 774272, at *6 (concluding that similar facts showed that the common management, supervision, or ownership prong of the single entity test weighed in favor of finding a single employer relationship).

II.A.4.Single-Employer Established

UHS-DE directs core aspects of employee health and safety and exhibits extensive control over these issues at the shared Worksite. It requires compliance with its Code of Conduct. UHS-DE’s handpicked CEO is onsite and has responsibilities for staff, regulatory compliance, budget matters, and, in her words, “everything in between.” (Tr. 2345.) Another UHS-DE employee handled aspects critical to the cited hazard, including facilitating the development of the WVPP, camera review policies, and analyzing employee injuries. A third oversees financial matters for the Worksite. All three factors support concluding a single-employer relationship existed between UHS-DE and UHS-Fuller at the Worksite at the time of the Citation.

II.B.Motion in Limine re Destruction of Evidence

Before continuing, the Secretary’s pre-hearing Motion in Limine requesting sanctions against Respondents for the destruction of evidence must be resolved. It is undisputed that video related to 22 different incidents of workplace violence were destroyed.65 This included destruction during OSHA’s investigation, after the Secretary served a valid subpoena on September 27, 2019 (the “Subpoena”), during the pendency of the Secretary’s Petition for Enforcement of Administrative Subpoena Duces Tecum (“Enforcement Action”), and after Respondents filed their respective Notices of Contest.66 The Secretary filed a Motion in Limine and sought various sanctions to redress this wrong.67

II.B.1.August Order Granting Motion In Limine in Part

The undersigned reviewed the parties’ filings and issued a partial ruling on the Motion in Limine on July 26, 2021, the first day of the hearing. (Tr. 26-32.) This ruling was discussed more fully in an Order issued on August 4, 2021 (“August Order”). The August Order incorporates the findings of two related federal court filings: the Magistrate’s Report and Recommendations Regarding the Enforcement Action (“Magistrate’s Report”), and the U.S. District Court for the District of Massachusetts’ (“District Court’s”) August 11, 2020 Order (“District Court Order”), adopting the Magistrate’s Report.68

The August Order found “no reason to depart” from the District Court’s findings. (Aug. Order 13.) It adopted those findings and made additional factual findings, including:

Id. at 6. Respondents failed to take reasonable steps to ensure the discovery and preservation of relevant, admissible ESI (electronically stored information). (Tr. 27; Aug. Order 8-15.) The destroyed ESI could not be restored or replaced through additional discovery.71 Respondents’ failure to preserve almost all the videos from the inspection period greatly prejudiced the Secretary’s ability to try this case. (Tr. 27-28; Aug. Order 17-18.)

Respondents agreed to several stipulations, which mitigated some of the prejudice resulting from the spoliation. (Tr. 28-29; Aug. Order 18.) As the stipulations were insufficient to cure the prejudice, these curative measures were ordered:

Respondents knew OSHA was investigating the hazard of workplace violence and that there was video of the hazard.73 They knew the videos were within the Subpoena’s scope. They knew the District Court was concerned about evidence preservation, and they represented to the District Court that evidence was not being destroyed.74 The District Court ordered them to preserve ESI.75 Even after that, more ESI was lost. (Ex. S-451O.) Although the undersigned held a “final ruling” on sanctions in abeyance, it was not because additional evidence was needed to find an intent to deprive. (Tr. 31.)

II.B.2.Renewed Request for Further Relief Under Rule 37(e)(2)

The Secretary renewed his request for further relief under Federal Rule of Civil Procedure 37(e)(2) (“Rule 37”), including the imposition of two adverse inferences related to abatement.76 The first would find that “the destroyed video footage would have shown that Respondents were not implementing what the Secretary has proposed as abatement.” (Sec’y Br. 38.) The second inference sought is a finding that “the destroyed video would have shown both the efficacy and the feasibility of what the Secretary has proposed as abatement.” Id.

UHS-Fuller argues that the loss of the videos was neither intentional nor in bad faith. (UHS-Fuller Br. 17.) It acknowledges “regrettable mistakes and errors” but claims that the August Order should be reversed in part and no further sanctions imposed. Id. at 17, 20. UHS-DE argues that no further sanctions are warranted as it did not intentionally deprive the Secretary of relevant evidence. (UHS-DE Br. 6; UHS-DE Reply 9, 11-14.)

The evidence produced during the hearing only bolstered the reasoning and conclusions of the August Order and the District Court’s decisions. Those decisions remain sound and applicable. In addition, the burden of proof necessary to impose both curative sanctions and the harsher sanctions available under Rule 37(e)(2) was met.

II.B.2.a.Relief Under Rule 37(e)(1)

Relief under Rule 37(e)(1) is available for unintentional losses whenever ESI should have been preserved in anticipation of litigation, and the party failed to take reasonable steps to preserve it.77 Multiple videos of workplace violence incidents were lost during OSHA’s investigation and this litigation. (Aug. Order 6.) Respondents failed to take reasonable steps to preserve this evidence, which could not be replaced through restoration or other discovery. Id. at 13-14. The deletion of videos was neither accidental nor the result of circumstances beyond the Respondents’ control. Id. at 14-15. Its loss prejudiced the Secretary. Id. at 17-18.

UHS-Fuller fails to rebut the findings in the August Order or the District Court’s decision. It attempts to blame one of its directors, Ms. MacCormack, for failing to preserve multiple videos. (UHS-Fuller Br. 18.) This argument omits several key details.

First, a long-time risk manager, Ms. Gosselin, was in place when Respondents received the Preservation Letter. At that point, she had worked for UHS-Fuller for nearly eighteen years and had been the risk manager for several of those years. (Tr. 2543, 2547; Exs. S-451S, S-451T, S-452C.) She was well educated, having received both a bachelor of science and a master's degree in health administration. (Tr. 2543.) She acknowledged that saving videos of incidents was part of her job and described how she saved them to a networked computer file. (Tr. 2553.) Despite her long-time presence in the position and experience with saving video, Respondents failed to produce video of any workplace violence incidents that occurred while Ms. Gosselin was the risk manager.78

Second, after Ms. Gosselin’s departure, another existing employee, Ms. MacCormack, became the Director of Risk and Quality. (Tr. 2966.) Ms. MacCormack worked at the facility for three years as a director in two different departments. Id. Her prior position was also a “senior leadership role.” (Tr. 2968, 2970.) Like Ms. Gosselin, she had a master's degree. (Tr. 2968.) Involvement in how the facility addressed patient aggression was not new to her. She had been involved with the issue when she worked as the Director of Clinical Services.79 In short, although new to this particular position, she was an educated and experienced employee who had long been involved in risk management and held leadership roles related to the Worksite’s response to patient aggression and violence.

Third, Respondents failed to act when they knew video had not been preserved.80 Rather than intervening when it was apparent that relevant, responsive evidence was not available, Respondents chose to do very little. For example, on December 4, 2019, when Ms. MacCormack was unable to play the videos of workplace violence incidents during a pre-arranged meeting, OSHA Assistant Area Director Marie Lisa Abundo (“AAD Abundo”) asked her to contact IT to see if someone could assist with the issue. (Tr. 3036.) Ms. MacCormack refused to do so.81 After that meeting, additional videos continued not to be preserved as required. Ms. MacCormack was not even sure how many videos she failed to preserve. (Tr. 2981.)

Fourth, while UHS-Fuller makes claims of technical snafus, it failed to call any IT employees to support its claims or produce other evidence of an unavoidable technical error. (UHS-Fuller Br. 17-18.) Ms. MacCormack claimed she saved videos of staff injuries to a folder on her desktop created by Don Kelly, the Worksite’s IT Director.82 Mr. Kelly was still employed at the Worksite at the time of the hearing but was not called as a witness.83 All the lost ESI was not the result of unavoidable technical errors.84

Fifth, Respondents’ policies required preserving videos of physical altercations.85 Under the Camera Policies, videos of incidents of workplace violence were to be saved and transferred to UHS-DE. (Aug. Order 13; Exs. S-35, S-459, S-451X, S-452C, S-452D; Tr. 428-29.) Two UHS-Fuller risk managers confirmed that they can save video and had done so.86 No one checked to see if Ms. Gosselin or Ms. MacCormack were complying with the Camera Policies or the obligations triggered by the Preservation Letter and Subpoena. Instead, Respondents were content to essentially leave it up to Ms. MacCormack on when and how to save the video.87

Although Ms. MacCormack expressed that she reviewed and coded the videos differently by the time of the hearing, she still viewed the Camera Policies the same. (Tr. 2985, 3078.) When asked whether she should have preserved more videos, she said her understanding of the Camera Policies was the same as when she began her position in September 2019. (Tr. 3078.) She continued to believe the Camera Policies did not require the retention of video footage related to a pending OSHA investigation or litigation with the agency.88 No one dissuaded her of this interpretation: not after the videos were subpoenaed, not after videos were unavailable when AAD Abundo arrived to review them, not after Ms. MacCormack told OSHA during its investigation she had “no idea” why videos were not preserved in response to the Preservation Letter, not after the Secretary filed the Enforcement Action, not after Respondents contested the Citation, not after counsel represented to the District Court that ESI was being preserved, not after the District Court enforced the Subpoena, and not after the District Court found that contesting the Subpoena was not substantially justified.89 Confronted with a similar situation in the future, Ms. MacCormack testified she “might ask for further clarification” about the Camera Policies. (Tr. 3078.) However, her interpretation of what needed to be preserved had not changed.90 While UHS-Fuller now theorizes reasons for her errors, Ms. MacCormack sees no error in how she interpreted the Camera Policies.

Unsurprisingly given the lack of intervention after Ms. MacCormack was unable to play the requested footage during OSHA’s investigation, additional video continued to be destroyed during the pendency of the Enforcement Action and this litigation. (Aug. Order 7; Exs. S-451N, S-451O.) Video of events on at least five different dates after Respondents filed their Notices of Contest were not preserved. Id. Litigation was not only anticipated but had already begun when this destruction occurred.91

On this record, awarding reasonable attorney’s fees and expenses associated with seeking sanctions for Respondents’ spoliation of relevant ESI is appropriate.92

II.B.2.b.Further Sanctions Under Rule 37(e)(2)

The same evidence that supports the conclusions of the August Order also supports finding that there was an “intent to destroy” within the meaning of Rule 37(e)(2). The rule does not require a party to establish prejudice or bad faith for sanctions to be imposed.93 Circumstantial evidence of intent to deprive is sufficient.94

While plausible that the occasional file could be lost inadvertently, the pattern of loss here takes place over many months, involves multiple senior managers, and a sophisticated entity with access to resources, including counsel and IT support. When it was abundantly clear that videos related to OSHA’s investigation were not available, the pattern of destruction continued. (Aug. Order 7.) Nothing altered Respondents’ behavior. The Secretary plainly and promptly informed Respondents of the need to preserve video evidence at the start of the investigation. As the District Court found, the “Preservation Letter placed Respondents on notice that they were required to preserve at least any videos concerning workplace violence at Fuller then in existence, as well as any subsequently created videos.” Id. at 2. This responsibility was reiterated on September 27, 2019, when OSHA served the Subpoena.95

Two different senior experienced employees failed to save video properly on multiple occasions between the service of the Preservation Letter and the Subpoena, and that pattern continued even after this litigation commenced. Notably, UHS-Fuller had at least one, and possibly as many as six, responsive videos in its possession when the deadline to comply with the Subpoena elapsed. (Aug. Order 3.) See Kindergartners Count, Inc. v. Demoulin, et al., 209 F.R.D. 466, 468-69 (D. Kan. 2002) (appropriate sanction was to deem defendant’s alleged defamatory conduct established when failure to timely produce records led to spoliation). This represented and sophisticated entity joined a Motion to Quash the Subpoena without confirming it was preserving the videos as required. See Fast, 340 F.R.D. at 344 (deleting posts rather than archiving them when the party knew how to do so showed evidence of an intent to deprive warranting sanctions under Rule 37(e)(2)).

Court orders are not needed to trigger compliance with preservation obligations. See e.g., West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999); Chambers v. NASCO, Inc., 501 U.S. 32, 43-45 (1991) (discussing the need to sanction behavior that “abuses the judicial process”). Similarly, a Motion to Quash may result in a subpoena being found invalid but filing such a motion does not permit a party to destroy evidence while the motion is pending.96 Especially when making representations in District Court that evidence was being preserved and not being destroyed, there should have been some effort to ensure that was the case. (Aug. Order 4.)

Respondents fail to refute the evidence of intent. They provide no evidence of a litigation hold or a suspension of their routine destruction policies. Neither Ms. MacCormack nor Ms. Gosselin indicated they ever checked to see if the files were saved before the December 4, 2019 meeting.97 Nor is there evidence of anyone checking on Ms. MacCormack to ensure the ESI was preserved while Respondents contested the Subpoena or during the Enforcement Action’s pendency. The District Judge’s express Order that Respondents preserve “any existing video surveillance footage” responsive to the Subpoena did not prompt additional safeguards.98 Nor were responsive videos backed up.99

At any time, Respondents could have implemented sufficient measures to ensure that all required videos were preserved.100 Respondents could have complied with their preservation obligations by, among other actions, promptly conducting a reasonable search for responsive ESI and implementing safeguards to prevent the ESI from being overwritten.101 They took no such actions. When errors with saving video became known, Respondents let a pattern of destruction continue unabated. (Aug. Order 6.)

Nothing worked to get Respondents to comply with the basic rule of litigation that parties cannot destroy relevant, discoverable information when litigation is “reasonably anticipated” or has commenced. Respondents are responsible for the absence of evidence they would be expected to possess.102

When there is an intent to deprive another party of the information’s use, adverse inferences may be appropriate.103 UHS-Fuller argues that additional sanctions are not warranted because the Secretary did not “use” the videos that were turned over. (UHS-Fuller Br. 20.) This argument is flawed in several respects. First, at a basic level, it is untrue. The Secretary’s expert, Robert Welch, M.D., reviewed all available video footage. (Ex. S-397; Sec’y Br. 32.) He described these videos in detail and relied on them to reach his conclusions. Id. His report is rife with discussion and analysis of the meager amount of video footage Respondents, or the police, preserved. Id. UHS-Fuller’s claim that the Secretary did not use the ESI turned over is rejected as contrary to undisputed evidence. (Tr. 1108-9; Exs. S-32, S-397.)

Second, the Secretary used video clips cobbled together from another source, the local police department.104 The police officer who attempted to preserve evidence of what happened on July 18, 2019 could only record brief snippets on his cell phone, not the entire video available to Respondents.105 The salvaged evidence was relevant and compelling. There is no reason to believe that the additional camera angles and complete footage would not have been helpful to the Secretary. As Dr. Welch explained, “video footage provides the most accurate and detailed evidence of incidents of violence and staff response to those events.” (Ex. S-397 at 56.)

Third, the July 18, 2019 incident occurred while OSHA’s investigation was ongoing and the February 22, 2020 incident occurred while this litigation was pending.106 OSHA should have been able to timely view the footage, particularly when its preservation was demanded in the Preservation Letter and sought via a valid Subpoena.107 AAD Abundo explained that video of incidents was “enormously useful” in investigating what happened and how to mitigate future incidents. (Tr. 1021.) The Secretary had to rely on witnesses’ testimony, many of whom Respondents employ, and incomplete records. The Secretary’s use of video evidence underscores what was lost. See Paisley Park, 330 F.R.D. at 236.

Fourth, multiple witnesses explained the utility of video from workplace violence incidents. UHS-Fuller’s HR specialist, Christopher Kirk, explained that camera footage for “all injuries that happen at Fuller” is reviewed.108 This allows them to see “exactly what happened” and assess what could be done to prevent such situations. (Tr. 3418.) “Camera review of episodes” was part of the Worksite’s WVPP. (Ex. S-166.) Respondents’ expert, Marc Cohen, M.D., agreed that camera review can be an important part of incident investigations. (Tr. 3374.) Like Mr. Kirk, Dr. Cohen said that video surveillance allows you to capture behavior that preceded the incident and to see how staff intervened. Id. Viewing the incidents can help educate staff to see if the response can be improved.109

Fifth, the point of precluding spoliation of evidence is that one side does not unilaterally get to decide what to preserve. When one side (a) has possession, custody, or control of material videos, (b) has the opportunity to review the video, (c) is capable of preserving video, and (d) only preserves some of the videos, it deprives the other side of viewing all relevant evidence. Nation-Wide Corp., Inc., 692 F.2d 214, 218 (1st Cir. 1982) (Breyer, J., drawing inferences from the destruction of documents under common law precedents). With selective preservation, it may be reasonable to infer that the destroyed videos were unfavorable. Id.

Respondents failed to preserve video of multiple incidents appropriately and now argue that lost ESI would not be helpful. But the discovery process allows the opposing side to see such evidence and determine its worth. One side cannot destroy relevant evidence and then claim it wouldn’t have benefitted its opponent. While possible that the ESI might not have been helpful to the Secretary, it is extremely difficult to support such speculation when Respondents failed to preserve what would be the best evidence of this conclusion.110

Respondents’ actions warrant the imposition of additional adverse inferences. Appropriate spoliation sanctions “should be molded to serve the prophylactic, punitive and remedial rationales underlying the spoliation doctrine.” Sharp v. Hylas Yachts, LLC, 872 F.3d 31, 42 (1st Cir. 2018). Besides the relief already awarded, the Secretary is entitled to these adverse inferences:

These inferences go directly to what was lost by the destruction. As Rule 37(e)(2)(A), provides, when there is an intent to deprive, judges may “presume that the lost information was unfavorable to the party” whose conduct deprived “another party of the information’s use in the litigation.”111

II.B.2.c.Sanctions apply to UHS-DE

UHS-DE argues that further sanctions are not warranted because, in its view, (1) the video footage of incidents of workplace violence at the facility “are not probative of any of the elements of the single employer test;” and (2) UHS-DE did not intentionally deprive the Secretary of access to the video footage he requested.112 It acknowledges that the loss of the videos was “unfortunate,” but contends the adverse inferences sought are unwarranted. (UHS-DE Reply Br. 9.) UHS-DE does not address the Secretary’s entitlement to expenses.

UHS-DE’s arguments are wrong in both respects. On the single employer issue, as addressed, UHS-DE and UHS-Fuller are jointly responsible for the Citation. Employees of both entities could be present in-patient areas and exposed to the hazard. (Tr. 2368, 2586-87, 2815-16; Stips. 19, 20.) CEO Legend, a UHS-DE employee, visited patient units every day but claimed UHS-DE employees were never involved in restraints or de-escalation related to patient aggression against employees.113 Video evidence of workplace violence incidents would be probative of this claim and could establish the involvement of UHS-DE employees in such incidents and the abatement of the hazard. See e.g., Sec. Alarm Fin. Enters., L.P. v. Alarm Prot. Tech., LLC, No. 3:13-cv-00102-SLG, 2016 WL 7115911, at *7 (D. Ala. Dec. 6, 2016) (call notes and depositions could not replace missing recordings because those alternatives “are likely to be far inferior evidence than the recordings of the calls themselves”); Regan, 468 U.S. at 678; Stevenson, 354 F.3d at 748.

UHS-DE’s own reliance on video also undercuts its argument that the destruction of such evidence would not be probative. The Senior Vice President of the Behavioral Health Division of UHS-DE explained that camera reviews were a part of safety assessments.114 Ms. Legend attended camera reviews of incidents of patient aggression and explained that there were “a lot of different occasions that might drive” her to review video of an incident. (Tr. 2436, 2352-53.) UHS-DE Loss Control Manager Bricault also reviewed video of incidents to ask questions about the techniques used during incidents.115

Turning to intent, it is appropriate to infer an intent to deprive from UHS-DE actions (and in some respects, inactions).116 UHS-DE has been involved in this matter from its early days. The District Court expressly concluded that UHS-DE was on notice of the litigation upon receipt of the Preservation Letter. (Exs. S-451A, S-451E, S-451F.) Its employee, Ms. Legend, and its outside counsel received the Preservation Letter at the start of the investigation.117 The Camera Policies specifically directed that the facility CEO, i.e., Ms. Legend, had to have the “[a]bility to copy/burn camera surveillance recorded images.”118 Consistent with the policies, Ms. Legend had access to download and save videos herself.119 She also could, and periodically had, instructed UHS-Fuller employees to save video of incidents of patient aggression against staff. (Aug. Order 14; Exs. S-15, S-34, S-35, S-459.) In addition, Sedgwick, a third-party contractor retained to assist Respondents with workers’ compensation claims and injury reporting, could request video of incidents which led to employee injuries. (Tr. 1663-66.)

UHS-DE Loss Control Manager Bricault visited the Worksite the day the investigation commenced. (Exs. S-55 at 1, S-57 at 2.) She was aware of the investigation and that information related to it was sent to the “legal department.”120 Like Ms. Legend, Ms. Bricault, could direct Ms. MacCormack to save video, and had done so, including during the pendency of OSHA’s investigation.121 Mr. Rollins, the former CFO for UHS-Fuller, confirmed that UHS-DE periodically requested video footage for incidents in which patients or employees were hurt. (Tr. 428-29.) UHS-DE employees, Chief Compliance Officer Meloni and Ms. Bricault also had the authority to instruct someone to preserve video footage. (Aug. Order 22; Tr. 1167, 1169, 1543, 1547; Exs. S-15, S-35, S-451X.)

Besides being able to exercise control to ensure video was saved, UHS-DE also knew when incidents related to the hazard and responsive to the Preservation Letter occurred.122 UHS-DE, through Ms. Legend and other direct employees, was timely informed of incidents of workplace violence. (Tr. 1125, 1236, 1297, 1396-97, 1628-29, 2482.) This included prompt knowledge of workplace violence that occurred during the inspection period or the pendency of this litigation for which there was video evidence. (Tr. 2482; Ex. S-15.) For example, on July 29, 2020, Ms. Legend was informed of an employee being hit in the face. (Ex. S-15.) A few days later, another UHS-DE employee, Ms. Bricault directed Ms. Legend to “[s]ave the video” of the incident.123 UHS-DE did not act similarly for video responsive to the Preservation Letter or the Subpoena.124

UHS-DE knew litigation was reasonably anticipated and, with respect to some videos, had already begun. (Aug. Order 8-13.) It knew OSHA repeatedly requested recordings of incidents of workplace violence.125 It preserved written records of incidents but not the contemporaneous recordings. “Common sense suggests that when a party preserves helpful or neutral information while deleting harmful information, that tends to indicate intentionality.”126

UHS-DE also attempts to rely on the fact that it took no action to secure the evidence as a basis for avoiding sanctions. However, failing to take possession of the videos does not absolve UHS-DE of responsibility, as it asserts. “Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” West, 167 F.3d at 779 (emphasis added); Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001) (obligation to provide access to the evidence or notice of the possible destruction); Jones v. U.S., No. 1:13-cv-00227-RAH, 2022 WL 473032, at *5 (Fed. Cir. Feb. 16, 2022) (“Physical possession is not a prerequisite to the imposition of a duty to preserve”). “A party's discovery obligations include taking affirmative steps to ensure that all potentially relevant evidence is retained.” Moody, 271 F. Supp. 3d at 428. See also DR Distribs., 513 F.Supp.3d at 931; Stevens & Sons, Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 103, 108-9 (E.D. Va. 2018) (failure to suspend routine ESI deletion was unreasonable). The concept of “control” over evidence has been construed broadly. Evidence is under a party’s control when that party has the right or authority to obtain the document upon demand. 127 “A party is in control of documents possessed by a third party if that third party is … obligated to make them available.”128

Multiple UHS-DE employees could either preserve the relevant evidence themselves or direct someone else to do so. (Aug. Order 22; Tr. 3022; Exs. S-34, S-35, S-459.) Except when the video of an incident would have been helpful to Respondents, there is no evidence anyone inquired into why videos of workplace violence were not being transmitted to UHS-DE as one would expect if the Camera Policies were being followed. (Aug. Order 22; Ex. S-15.) Nor is there evidence Ms. Legend, or anyone else, confirmed the preservation obligations were being adhered to when Ms. MacCormack took over the risk manager role. The same is true after the service of the Subpoena, after the loss of video become known to Respondents during the OSHA investigation, after the filing of the Enforcement Action, after UHS-DE filed its Notice of Contest with the Commission, and after the District Court ordered UHS-DE to honor its preservation obligations.

UHS-DE contends its failure to gather responsive materials after the Subpoena was served or to act when it learned evidence was not being preserved should be excused. (UHS-DE Post Hr’g Br. 65; UHS-DE Reply Br. 11-14.) Particularly after litigation commenced, UHS-DE’s failure to act to preserve evidence after being ordered to do so by the District Court is not excusable. Even wrongly cited employers still must comply with the Commission’s discovery process. UHS-DE knew OSHA was investigating the hazard of workplace violence at the location of one of its affiliates.129 It had both a representative and counsel at the opening conference. (Tr. 1355-56.) It knew its affiliate had video evidence of the hazard. (Aug. Order 23.) It received a Preservation Letter and a Subpoena for videos related to workplace violence. (Aug. Order 23; Exs. S-20, S-23, S-455; Tr. 1355-56.) And the District Court ordered it to preserve ESI.130

As with UHS-Fuller, UHS-DE’s pattern of behavior shows an intent to deprive the Secretary of evidence. Sanctions under Rule 37(e) are appropriate. After indisputably becoming aware of the destruction of video evidence, it continued not to act to prevent further destruction of relevant, discoverable evidence. This did not change after UHS-DE was cited and filed its Notice of Contest. (Aug. Order 4-5.) UHS-DE’s failure to act to preserve evidence it had access to, control over, and could have secured shows its intent to deprive the Secretary of relevant, admissible ESI. Id. The adverse inferences are jointly applicable to UHS-DE, and it is jointly responsible with UHS-Fuller for payment of the Secretary’s costs and expenses in bringing the Motion in Limine.131

II.B.3.Summary of Spoliation Sanctions

For these reasons, the Secretary is entitled to these adverse inferences, applicable to both UHS-DE and UHS-Fuller:

The Secretary is also entitled to attorneys’ fees associated with bringing the spoliation issue before the Commission. This includes his attorneys’ fees related to the Motion in Limine, the Show Cause Reply, and the relevant sections of his post-hearing briefing.

If the Secretary wishes to pursue the reimbursement of those expenses related to bringing spoliation before the Commission, he shall file with the undersigned an accounting of those costs and expenses and present the same to Respondents UHS-Fuller and UHS-DE within four calendar days of the service of this decision to the parties on January 20, 2023. 29 C.F.R. § 2200.90(a), (b). He may include any relevant authority supporting the awarding of costs. Respondents UHS-Fuller and UHS-DE, if they so choose, may, within four calendar days of receiving the Secretary’s accounting, file with the undersigned any objections to the accounting or the authority relied on for calculating such expenses.

All other orders, adverse inferences and other requested relief south in the Motion in Limine is denied.

II.C.Unsupported Vindictive Prosecution Claim

Respondents claim the Citation was the result of “vindictive prosecution.” (UHS-Fuller Br. 107-113; UHS-DE Br. 53-55.) These claims are baseless and without support. They are dismissed with prejudice.

Respondents fail to make even a minimal showing of vindictive prosecution. Neither Respondent claims the exercise of a protected right triggered OSHA’s inspection, a basic requirement of a vindictive prosecution claim.132 See Nat’l Eng’g & Contracting Co., 18 BNA OSHC 1075, 1077-79 (No. 94-2787, 1997) (finding that although the employer “appears to receive a good deal of attention from OSHA,” the failure to identify “any protected right it exercised that caused the Secretary to initiate [the] inspection or prosecution” or to characterize the violation as willful defeated its claim of vindictive prosecution), aff’d, 181 F.3d 715 (6th Cir. 1999); S. Scrap, 23 BNA OSHC at 1602-3 (rejecting a vindictive prosecution claim when there was no evidence that government action was taken in response to the exercise of a protected right). Nor is there any evidence to support Respondents’ claim. See Vergona, 15 BNA OSHC at 1788 (noting the Secretary’s “broad prosecutorial discretion” and finding that selectivity in enforcement is not enough to sustain claim of impermissible prosecution).

A complaint regarding, among other things, concerns about workplace violence triggered OSHA’s inspection. (Tr. 534-35, 1354-55, 1364; Exs. S-20, S-57, S-148, RF-89.) After receiving the complaint, OSHA conducted an on-site inspection on June 12, 2019. Id. On that date, CO Kadis performed an opening conference with the Worksite’s leadership and presented an evidence preservation letter. (Tr. 586, 1354-56; Exs. S-20, S-22, S-455.) She walked through all the units and chose random employees to interview. (Ex. S-22.) Approximately three months later, AAD Abundo became involved in the investigation.133 AAD Abundo and CO Kadis requested documents, interviewed employees, performed on-site inspections, and issued subpoenas.134

OSHA spent months gathering evidence, reviewing documents, and talking to workers before the Citation was issued. (Tr. 544-50, 583-84, 614-15, 999-1000, 1354-64; Exs. S-22, S-24, S-38.) While reviewing the Worksite’s OSHA logs, AAD Abundo noted head injuries and other serious injuries.135 Respondents’ data showed that in the first six months of 2019, there were 41 staff injuries requiring medical attention. (Tr. 1267; Exs. S-1, S-1B, S-2, S-68.) This placed the Worksite well above Respondents’ own “benchmark” for employee injuries and placed it in the category of the top 50 UHS affiliates for injuries. (Tr. 1133, 1264-69, 1321, 1333; Exs. S-68 at 8, 10, S-397.)

Through interviews and reviews of documents, AAD Abundo learned that Respondents did not consistently investigate or thoroughly analyze employee injuries. (Tr. 578-84; Ex. S-24.) She also learned from employee interviews that sufficient staff was not consistently available to respond to emergencies. (Tr. 562, 565; Ex. S-24.) This inadequacy led to the need for police to respond to incidents at the Worksite. (Tr. 565; Ex. S-24.) AAD Abundo also learned of the difficulties staff had when attempting to call for assistance with violent patients. (Tr. 562, 565, 567-69, 584-86, 597-98.) At the investigation’s close, the Citation was issued to UHS-Fuller and UHS-DE. (Exs. S-24, S-148, RF-89.)

There was ample evidence to support the Citation’s issuance.136 Further, the additional steps OSHA took to emphasize Respondents’ obligation and responsibility to preserve evidence are not signs of vindictive prosecution. (UHS-DE Br. 53 n.7; UHS-Fuller Br. 107-8.) The actions were motivated by concerns about the potential loss of evidence. (Ex. S-22.) Sadly, those concerns proved to be well-founded.137

III.Factual Background and Select Findings of Fact

This section provides background on the hazard of workplace violence at the Worksite, including the incidents on July 18, 2019, August 22, 2019, and February 22, 2020, and the frequent need for police. Next, it summarizes the policies and procedures Respondents’ claim were sufficient to address the hazard. Finally, it discusses how the existence of other regulators did not preclude OSHA from investigating the hazard at the Worksite or citing the identified violation of the OSH Act.

III.A.Workplace Violence Incidents at the Worksite

Incidents of workplace violence consistently occurred both before and during the pendency of OSHA’s investigation. (Exs. S-1, S-1B, S-2, S-26, S-27, S-51, S-451N.) In 2018, there were approximately forty-eight injuries from patient aggression or assault. (Exs. S-2, S-166 at 1.) In just the first six months of 2019, there were over 600 incidents of aggression, with approximately 46 resulting in injuries that required medical attention.138 During the inspection period, employees were injured in direct attacks by patients, when breaking up fights between patients, during safety checks, and while working with patients. (Exs. S-1, S-1B, S-11, S-24.)

OSHA compared the Worksite’s Days Away, Restricted or Transferred (“DART”) to the national DART rate for Psychiatric/Substance Abuse Hospitals reported by the Bureau of Labor Statistics (“BLS”). (Tr. 879, 904; Exs. S-2, S-22, S-24.) For 2017, the Worksite’s DART rate was nearly four times higher than the national rate for similar businesses.139 For the first eight months of 2019, the Worksite’s DART rate was 19.4, substantially increasing from prior years and well above where the national rate historically was.140 Injuries from workplace violence incidents appeared to drive the increase. (Ex. S-22.)

UHS-Fuller also calculated an injury rate for the Worksite using a different metric. It looked only at the hours worked by the direct care staff and determined the injuries to staff from patients. (Tr. 380-81, 1265-69, 1333-36; Exs. S-24, S-51, S-54, S-57, S-68.) Like the facility-wide calculations, the rate for just the direct care workers increased significantly over time, from 4.5 in 2013 to 22.05 in 2019. Id.

UHS-Fuller acknowledges that a “riot” occurred on July 18, 2019, and that assaults occurred on August 22, 2019, February 22, 2020, and other dates. (Stips. 28-29; UHS-Fuller Br. 52-55.) However, it claims the Secretary “cherry-picked the worst incidents to occur” at the Worksite. (UHS-Fuller Br. 52.) The Secretary does not dispute that the events of July 18, 2019 and February 22, 2020, were particularly egregious. However, the pattern of workplace violence incidents and inadequate abatement measures preceded the start of OSHA’s investigation and continued after the Citation’s issuance. (Exs. S-1, S-1B, S-51, S-54, S-56, S-57, S-61, S-68, RF-32 at 4.) Violence was not an idiosyncratic occurrence at this Worksite. Id.

III.A.1.Series of Violent Events starting on July 18, 2019

Multiple staff members were injured on July 18, 2019, while responding to patient behavior at the Worksite.141 Starting around 11:00 pm on July 18, 2019, two patients began peeling paint from the walls and forming it into balls. (Exs. S-38, S-178, S-436, S-437, S-438.) One patient starts to throw the balls toward nearby staff. Id. Then, the patient escalates his behavior from peeling off more paint to getting up and pulling down a ceiling tile. (Ex. S-439.) Two other patients attempt to do the same. Id. Additional patients joined in the commotion. (Ex. S-438, S-439.) By now, employees are attempting to contain four patients who are aggressive and assaulting staff. (Exs. S-438, S-439, S-440, S-441; Tr. 695-97.)

During the response, a patient repeatedly hits an employee (L.T.) in the head and then grabs her hair near the scalp. (Exs. S-178, S-438, S-439, S-440; Tr. 695-97.) L.T’s head and body twist as she strains to free herself. Id. She is forced to the floor as the patient maintains her grasp on L.T. Id. Other employees come to assist L.T. but when they do not act to remove the patient’s hand grasping the top of L.T.’s head. Id. For several minutes, staff cannot stop the assault. (Ex. S-440; Tr. 1821.) L.T. is on the ground with her hair grasped by the roots and her head twisted for five minutes. (Tr. 697, 1812; Ex. S-440; S-397 at 15.)

Officer Brunelli described the situation as “alarming.” (Tr. 697; Exs. S-440, S-441.) L.T. could not “help herself” and was “at the mercy” of the patient assaulting her. Id. The patient “could take control of [L.T.’s] arm and throat.” Id. “It was a dangerous situation” for L.T. Id.

Around the same time as L.T.’s assault, another employee was physically restraining a different patient nearby. (Exs. S-440, S-441; Tr. 699-701.) As that restraint continued, another patient became aggressive. (Ex. S-440, S-441; Tr. 701-02.) Staff attempted to address that aggression but were still busy with the restraint and could not halt the aggression. (Exs. S-397 at 5, S-440, 441.) So, the patient walked away unattended. Id.

As the violence progressed, multiple calls were made to the police to come and assist employees at the Worksite with addressing the violence. (Stip. 28; Tr. 565, 652-53, 745, 792-93, 1079; Ex. S-178.) Four officers were dispatched. (Tr. 663, 745, 792; Ex. S-178.) The police were told that juveniles were rioting and needed to be restrained because they were being assaultive towards staff and other patients. (Tr. 792.)

Officers Brunelli and Sherratt arrived first, with two additional officers arriving 8-10 minutes later. (Tr. 663, 652-54, 745, 792-93; Ex. S-178.) Upon arrival, the officers had to wait for someone to let them into the locked unit. (Tr. 652-54, 745, 792-93.) Once inside, they saw multiple acts of aggression occurring and described the unit as being in “disarray.” (Tr. 654, 745, 792-93; Exs. S-178, S-440, S-441.)

Officer Sherratt saw one patient on the floor with employees attempting to hold him. (Tr. 745; S-178.) The patient was struggling with the employees and had the fingers of one employee in his mouth. (Tr. 721-22, 745; Ex. S-178.) The officer asked if the employees needed assistance, and they asked him to handcuff the patient. (Tr. 745; Ex. S-178.) As Officer Sherratt finished handcuffing the patient, he and Officer Brunelli heard more commotion.142

Officer Brunelli moved toward another part of the unit to assist more employees struggling with other patients. He saw an employee restraining a patient to prevent the patient from attacking anyone. (Tr. 657; Ex. S-178.) That person did not need his assistance, but other employees did. Id. They were trying to manage another patient. (Tr. 657-58, 704; Ex. S-178, S-440.) The patient repeatedly tried to hit one employee’s face as the second employee struggled to assist. Id. Officer Brunelli ordered the patient to separate from the employee he was trying to hit and lie on his stomach. (Tr. 657, 705, 707; Ex. S-178.) After multiple requests, the patient got to his stomach but continued moving and swinging. (Tr. 657, 705, 722-24; Ex. S-178.) Officer Brunelli handcuffed the patient to protect the patient and others. Id. Shortly after handcuffing him, Officer Brunelli transitioned the patient to a seated position on the floor and then to a chair. (Tr. 657, 706-7; Ex. S-178.) The officer removed the handcuffs when the patient calmed down and agreed to stay calm. (Tr. 657-58, 746; Ex. S-178.)

“Multiple physical alterations” were all “happening at the same time.” (Tr. 697; Exs. S-397 at 4-6, S-436 thru S-441.) Officer Brunelli candidly explained that, in the moment, he was not aware of all that was going on, particularly what was happening behind him as he tried to address the situation in front of him.143 After the officers handcuffed two patients, additional police were still needed. At one point on July 18, 2019, more than half of Attleboro’s police officers on duty were at the Worksite in response to calls about assaultive patients. (Tr. 1066.) When Sergeant Fleming arrived, multiple other patients were walking around the unit, “hollering” and “screaming.” (Tr. 793.) He looked for ways to try to “quell” the situation. (Tr. 792-93.) Police remained in the unit for about thirty-five minutes before the violence was sufficiently contained and the officers could depart. (Tr. 663, 792-93.) Throughout the incident, the staff was “out numbered and overwhelmed.” (Tr. 1821.) Some staff injuries from the incident were significant enough to require medical attention and time off work. They included a concussion, bites, a strained shoulder, and a bruised scalp.144

III.A.2.MHS Assaulted on August 22, 2019

MHS SM discussed another example of workplace violence. On August 22, 2019, a patient assaulted her. (Tr. 75-76.) The patient slapped her in the face and kicked her in the groin. (Tr. 75; Ex. S-383.) After the kick, the patient ran down a hallway. (Tr. 75.) The same MHS had to go after the patient.145 At the end of the hall, she saw the patient standing on a table as she tried to rip down the exit sign hanging from the ceiling. (Tr. 76.)

SM, with the assistance of the MHS who was supposed to be exclusively performing safety observation checks, tried to help the patient down from the table. Id. The patient then grabbed the lanyard of the second MHS and began using the attached flashlight to whip SM. (Tr. 77.) SM needed to scream for additional assistance because of her location and because the only other MHS on the unit at that time was already with her. (Tr. 76-77.) She did not have a walkie-talkie, and there was no phone or any other way to get assistance. (Tr. 77, 83, 86.) She “just screamed and hoped that the nurse heard.” (Tr. 77, 86.) No one initially responded. (Tr. 77.) Eventually, the unit nurse heard and came over to assist. Id. When that was not enough, the nurse left the area so she could call for more assistance using the phone down the hall. Id. It was not until the completion of that call did workers from other units start to arrive and help.146

III.A.3.Violence of February 22, 2020

Another series of violent events occurred in the adolescent unit on February 22, 2020.147 Three patients, all minors and identified herein as Mr. A, Mr. B, and Ms. C, jointly assaulted staff.148 The events began with Mr. A kicking a mailbox off the wall. (Tr. 94-96; Exs. S-32, S-446.) He then proceeded to pull down a wall-mounted telephone along with the drywall behind the phone. Id. The staff on the unit were unable to manage him. (Tr. 1114; Exs. S-397 at 18-19, S-446.)

Staff from other units then arrived to assist. (Tr. 98, 106; Exs. S-32, S-397 at 18, S-446.) Mr. A proceeded to violently assault one of the responding employees by punching him in the head. Id. Eventually, staff were able to wrestle Mr. A to the ground. Id.

Two other patients, Mr. B and Ms. C, witnessed Mr. A’s restraint. Id. Apparently upset by the restraint, Mr. B and Ms. C began assaulting staff. (Tr. 108-9; Exs. S-32, S-397 at 18, S-446.) Their behavior continued until staff restrained them as well. Id. Staff held all three patients on the floor for 36 minutes before allowing them up. (Tr. 104, 109-10, 118-19, Exs. S-397 at 18; S-446.) Other patients remained in the room during the assaults and subsequent restraints. (Tr. 113; Exs. S-397 at 18-19; S-446.)

Once the restraints ended, staff did not closely monitor Mr. A, Mr. B, or Ms. C.149 Tragically, about ninety minutes after the release, an MHS discovered Mr. A sexually assaulting Ms. C.150 The MHS tried to pull the assailant off the patient, who was sedated and asleep at the time.151 When she was unable to stop the assault herself, she ran into the hall to yell for help. (Tr. 136-37; Exs. S-32, S-178, S-442.) As the MHS tried to obtain help, Mr. A walked away from Ms. C’s room with full access to other patients and staff. (Tr. 137-38, 140, 145-46, 148; Exs. S-397 at 18-19; S-442.) MHSs arrived to assist but Mr. A was not placed under direct supervision for several minutes. (Tr. 137-40, 145-52; Exs. S-398 at 18-19, S-442, S-443B.) Ms. C also appears to be unsupervised for a time after being sexually assaulted. (Tr. 149, 151; Exs. S-442, S-443B.) Ms. C was later transported to Sturdy Hospital for further care.152

The police investigation included speaking to Ms. C and Mr. A, reviewing the available video, and collecting evidence from the Worksite. (Ex. S-32.) According to Officer Brillion, the staff were unable to control Mr. A’s behavior “and it got further out of control” as the evening progressed.153 Mr. A overpowered the MHS and she was in danger when she attempted to stop the assault. (Tr. 1114.)

III.A.4.Attleboro Police Department Responses to the Worksite

Besides the July 18, 2019 and February 22, 2020 incidents, there are other “times when police are called to [the Worksite] to assist with assaultive patients.” (Stip. 27.) Police respond to the Worksite for assistance with aggression, elopements, and other issues about once every two weeks.154 The Worksite is one of the “top 5” locations in terms of requests for assistance from the local police. (Tr. 645.)

Many of the police responses to the Worksite related to patient attacks on staff.155 Several calls related to situations when staff contacted the police because they were unable to manage patients. (Tr. 767-68; Exs. S-178, S-190, S-191, S-206.) Sometimes the police were called to assist because patients had left the facility (referred to as elopements).156 Other times the incidents involved patient attacks on other patients.157

III.B.Respondents’ Policies and Procedures

Respondents emphasize the steps taken to address workplace violence. They developed a WVPP (Workplace Violence Prevention Plan), which sets forth several policies and procedures concerning the cited hazard.158 The WVPP includes one policy focused on workplace violence with additional policies incorporated by reference. The WVPP claims the Worksite “adopted a ‘Zero Tolerance’ approach to workplace violence.” (Ex. S-166 at 1; UHS-DE Br. 21.) However, workplace violence was both anticipated and tolerated. The WVPP notes that forty-eight injuries from patient aggression or assault occurred in 2018 and set a goal of forty-three injuries (or less) for 2019.159

Broadly, the Respondents’ approach to addressing the hazard focuses on: (1) training, (2) debriefings and incident investigations, (3) staffing, and (4) managing the milieu. (Exs. S-55, S-166; UHS-Fuller Br. 28-37, 42-52, 68-78.)

III.B.1.Training and Shadowing

Respondents train all new direct care employees for about a week.160 Certain employees are provided additional annual or “as needed” training.161 One day of the training is all computer-based through a program called “Healthstream.” (Tr. 191, 1204.) The other four days are in a classroom-type setting with opportunities to role-play.162 The training includes: (a) techniques to de-escalate situations verbally; (b) how to restrain patients, and (c) a week of working directly with a more experienced employee in the patient care units.163

III.B.1.a.Verbal De-escalation Techniques

New employee training for direct care employees includes about one-day focused on verbal de-escalation. (Tr. 284, 2856.) UHS-DE developed the verbal de-escalation training used, but UHS-Fuller employees teach it. (Tr. 1582-83, 2856.) The training covers terminology, listening to and re-directing patients, and avoiding power struggles. (Tr. 190, 281-82.) It includes role-play activities and a written test. (Tr. 2861-62, 2877-78.)

A subset of employees working in a unit with higher-need patients are required to supplement the one-day training with an additional program so that they can be part of the Behavioral Emergency Response team (“Dr. BERT”) team. (Tr. 207-8; Ex. RF-14.) Employees must have worked at the facility and be recommended by a manager before they can elect to receive Dr. BERT training. (Tr. 194-5, 2884.) Dr. BERT trained staff are akin to “first responders” for situations that may require restraining a patient. (Tr. 216.) The Dr. BERT techniques require at least two employees and are designed to be applied in the early stages of escalating behavior.164

III.B.1.b.Restraint Techniques

Verbal de-escalation is not always effective, and sometimes staff must physically intervene with violent patients. (Tr. 3275.) The facility uses the HWC (Handle With Care) training program developed by a third party to teach employees how to restrain patients. (Tr. 1584, 2855; Ex. RF-13.) HWC training must be completed before employees can work on a care unit. (Tr. 196.) The portion of the HWC training focused on going “hands-on” with a patient was several hours.165 The primary restraint technique taught requires the assistance of multiple people. (Tr. 198, 916, 1820, 2866; Ex. RF-13.)

Clinical staff (doctors, nurses, MHS, and social workers) receive the full HWC restraint training.166 Non-clinical staff, such as housekeeping and cafeteria workers, are trained only on the HWC techniques related to upper body restraints.167 There is no written test on the restraint techniques. However, the trainer reviews a checklist with each participant to see if they have any questions.168 If an employee has questions, the trainers demonstrate the technique again. (Tr. 2906.) Completing a less comprehensive version of HWC training is required annually after the initial training.169

III.B.1.c.Shadowing

At the end of the training week, new direct care employees are “shadowed” by another employee for four shifts.170 Mr. Martin and/or a nurse educator evaluate new employees after 30 days and again after 60 days of employment. (Tr. 2879-80.) During these evaluations, Mr. Martin discusses the opportunities for more training if the employee would like it. (Tr. 2880.)

III.B.2.Debriefings and Incident Investigations

Training has not eliminated the hazard and workplace violence still routinely occurs. (Ex. S-166 at 1; Tr. 2153-54.) Workplace violence incidents are supposed to be examined to see why they happened and to prevent re-occurrence. (UHS-Fuller Br. 36.) This process is referred to as “debriefing” and is part of the Worksite’s efforts to “address and mitigate the hazard of workplace violence.” Id. at 3-4, 37. UHS-DE’s Chief Clinical Officer explained that debriefing is “the only way to understand what’s happened.” (Tr. 1585-86.) Debriefing is necessary “to understand from the patient perspective and the staff perspective what happened.” Id. The debriefing process permits the creation of action plans that can prevent or mitigate recurrence of aggressive behavior or violence. Id.

The Massachusetts DMH also requires the employees involved in a patient restraint to complete a debriefing form afterwards.171 There is no evidence that DMH requires the completion of any paperwork if an employee is injured or experiences workplace violence in a situation not involving a restraint. But, according to Mr. Martin, under the Worksite’s policies, there is supposed to be a debriefing with staff after “every code.” (Tr. 2881, 2874-75.)

Employees acknowledged that debriefings occurred but denied that they happened after every code and raised issues with the ones that did occur. (Tr. 157-58, 160, 255, 445, 580-81, 1018, 1822-23.) Often, managers would not seek feedback from staff who had to intervene in violent incidents. (Tr. 157-60, 445, 580-81, 1018; Ex. S-11.)

Separate from the debriefing process, Respondents collected information related to the injuries sustained by employees from workplace violence as part of its management of workers’ compensation claims. After being injured, employees are directed to contact Sedgwick, a third-party workers’ compensation claim manager. (Stip. 48; Tr. 241, 1188-90, 1280-81, 2348, 3419.) During such calls, someone from Sedgwick assesses the injury and directs the employee for further care if appropriate.172 Sedgwick then prepares reports based on employee calls and forwards them to the UHS-DE Loss Control Manager.173 She, in turn, forwards the reports to HR personnel and the HWC educators at the Worksite. (Tr. 1191.) The educators look to see if there was “any gap” in the employee’s response to the “patient’s aggression or physical confrontation.” (Tr. 1192.)

Besides the information Sedgwick compiles, Respondents also maintain a risk management database to track certain incidents.174 The database lets employees log information about “events that occur.” (Tr. 1249.) Incidents in the database can be labeled as patient aggression towards staff, patient attacked staff, patient out of control, patient attacked by another patient, property damage, and other categories. (Tr. 1250, 1252-54, 1258.) Information from the database is presented at Patient Safety Council and Quality Management Committee meetings. (Tr. 2555-56, 2558; Exs. S-61, RF-32, RF-33.)

III.B.3.Staffing

UHS-Fuller cites staffing as part of its approach to addressing incidents of workplace violence. (UHS-Fuller Br. 3, 42.) A state regulator sets forth a minimum number of nursing hours per day for each patient.175 UHS-Fuller meets this minimum by using a “staffing grid.” (Tr. 1424-25, 3407-8.) The grid indicates how many nurses are needed and how many MHSs are needed for various numbers of patients. (Tr. 3407-8; Exs. S-3 thru S-10, S-153.) The number of patients is determined once per day, and this count is referred to as the patient census. (Tr. 368.) In scheduling workers, the staffing coordinator indicates that he assumes the census will be at the maximum.176 The ratio of staff to patients is sometimes referred to as employees per occupied bed (“EPOB”). (Tr. 359; Exs. S-454, RF-95, RF-96.)

On the first shift, there are two nurses and three MHSs for eighteen patients. (Tr. 225-26.) For the first four hours of the second shift, there are two nurses and three MHSs. (Tr. 225, 253.) For the later part of the second shift, there are two nurses and two MHSs. (Tr. 72-73, 76, 225.) Then, for the overnight shift, there is one nurse and two MHSs. (Tr. 76, 226, 253.) In addition to the nurses and MHSs, other administrative employees can assist if they are on-site and available.177

III.B.3.a.Calling for Additional Assistance

The number of people working at the Worksite varied, with the fewest employees on nights and weekends. (Tr. 225-26, 252-53, 335.) RN, a former MHS and milieu manager, described the third shift as a “skeleton crew” with the “bare minimum.” (Tr. 253.) If an employee needs additional assistance to manage patient aggression or violence, they can seek help from co-workers by calling a “code.”178 Staff can yell out, “Code 22.” (Tr. 207-8, 438, 918.) Then another employee who can both hear the request and gain access to a phone needs to complete the process before assistance arrives.179 If the person needing help is near a phone, they can pick it up and dial a number to start the process themselves. Id. Dialing the number allows an employee to use an overhead speaker system to ask employees, including those in other units and administrative roles, to respond to a particular unit if they are available.180 Alternatively, rather than using the overhead paging system, someone near the phone could individually call other units to see if they can send anyone to assist. (Tr. 208-9, 2776.) The staff coming from other units have other responsibilities. (Tr. 324, 1843, 2258.) There was no “excess staff in the building.” (Tr. 1843.) A request for assistance in one unit depletes the other units of workers. (Tr. 1837.)

For situations where the threat of injury appears less imminent, employees can request assistance from the Dr. BERT team. (Ex. RF-14.) To do this, staff had to locate a phone, dial a number, and say “Dr. BERT” along with their location. Id. at 4. Like those responding to Code 22s, those responding to requests for the Dr. BERT team had other responsibilities. There was no staff dedicated to responding to calls for assistance. (Tr. 72-73, 178-79, 324, 565, 929, 2258; Ex. S-397 at 32.)

Each unit also has one pair of walkie-talkies. (Tr. 83-85, 220-22, 2938.) However, there are not enough walkie-talkies for each person, and staff do not carry them within the patient care units.181 Instead, employees take one of the devices and leave the other in the unit when they escort patients outside of the unit. Id. Each walkie-talkie connects to only one other device. (Tr. 84, 222.) When used, multiple people do not hear the request for assistance even if they are also carrying a device. Id. The devices do not have an emergency call feature or a way to ask for assistance silently. (Tr. 1938-39, 1950-51.) Nor do the walkie-talkies indicate where the person needing assistance is located. (Tr. 1943, 2777.) Staff must explain their location to the person responding to their call. Id.

III.B.3.b.Police Involvement

According to the CEO, the facility has a “practice” not to call the police. (Tr. 2504-5.) This was not an official policy.182 Despite the CEO’s claims, the police routinely responded to behavioral health emergencies at the Worksite. (Tr. 565, 652-53, 2054, 2505, 2783; Exs. S-32, S-167 thru S-207, S-397.) They responded to incidents involving patient-on-staff violence and patient-on-patient violence. Id. Officer Sellers testified that there is no security staff at the Worksite. In his opinion, the lack of security staff required police to deal with things that would otherwise be handled, at least in part, by security. (Tr. 1066-67.)

III.B.3.c.Requests for Additional Staffing

At the start of OSHA’s investigation, in addition to the nurse in each unit, there was also an on-site nursing supervisor. (Tr. 412-14, 2962.) The nursing supervisor would assess acuity and call in more staff if needed. Id. Around October 2019, the nursing supervisor position was eliminated. (Tr. 412, 414, 417, 2962-64, 1883, 2499.) Instead, employees must first talk to their charge nurse or unit manager if they believe additional staffing beyond the DMH requirements is needed. (Tr. 3410-11.) If that person agrees, the staffing coordinator or house officer is contacted. Id. That individual is required to check with the CEO or the administrator on call (AOC) before responding to the request. (Tr. 3410-11; Ex. RF-1.) If the request is approved, the house officer or staffing coordinator attempts to find someone to work in the unit. (Tr. 3410-11.) Mr. Kirk, a former staffing coordinator, could not recall management denying a request for extra staff. (Tr. 3410.) Still, it was rare for a unit to have more staff than the minimum required by DMH.183

Unlike the nursing supervisor, the house officer did not have the skills or background to provide clinical judgment around patient care.184 When the Citation issued, there was no longer a nursing supervisor who could make a clinical determination regarding acuity and independently authorize additional staff. (Tr. 413-15, 424.) Although there was always an on-site physician, an administrator (the AOC or CEO) had to authorize any increases to staff levels for acuity.185

III.B.4.Managing the Milieu

Respondents consider managing the milieu, or environment of care, to be “a critical mitigation measure.” (UHS-Fuller Br. 45; Ex. S-166.) They seek to create environments where individuals who need care can receive it safely and effectively. (Tr. 1620.) Care units have a “sensory room,” which is a quiet space for patients to relax. (Tr. 127.) Staff are taught various de-escalation techniques to manage the milieu and communicate with the patients. (Tr. 282, 301-4, 2305, 3189; UHS-Fuller Br. 46.) Tasks to manage the milieu included: (a) a process to ensure patients are routinely observed, (b) sharing information between shifts, and (c) loss control assessments that include follow-up actions to address issues identified.186

III.B.4.a.Observation

Patient observations was part of the Worksite’s WVPP. (Ex. S-166.) Typically, most patients are observed every fifteen minutes.187 One MHS focuses on completing the observations. (Tr. 124-25, 3416.) They have a checklist and observe each patient within the appropriate period. (Tr. 124-25.) Staff are to look for anything hazardous and record the patient’s behavior at the observation time.188 Senior managers conduct in person rounds or review video to confirm that the observations occur. (Tr. 2555, 2578, 2586-87; Exs. RF-32 at 2, RF-33 at 3.)

A doctor can also increase a patient’s observation level so that an MHS checks a patient every five minutes or observed constantly. (Tr. 87, 202-3, 3409.) Constant observation requires always remaining at arm’s length from the patient. (Tr. 75, 87.) This is sometimes called being on 1:1 observation. Id. Typically, 1:1 observation is not used for aggressive patients at this Worksite. (Tr. 2311.)

III.B.4.b.Reports

Direct care employees work eight-hour shifts. (Tr. 2879.) During the first shift, there is no written shift report to leadership, but such reports are prepared on the later shifts when management and senior leadership are not present. (Tr. 2956-57; Ex. RF-49.) The shift reports include information about incidents and administrative or environmental issues to address. (Tr. 2957-58.) They also identify patients under more frequent observation and specify the supervisors for the shift. (Tr. 2957-58, 2964.)

III.B.4.c.Loss Control Visits

Ms. Bricault conducts formal loss control assessments about once a month. (Tr. 1246.) The assessments look at the success of aggression control measures, staff injuries trends, look for recommendations related to safety, and track efforts to comply with past recommendations. (Tr. 1237-49; Exs. S-52, S-53, S-55, S-57, S-60, S-61, S-62.) After the assessment, she holds a meeting with senior leadership to discuss the assessment findings and provides a written report. (Tr. 1236-37, 1244.)

III.C.Role of the Massachusetts Department of Mental Health (“DMH”) and Other Regulators Does Not Deprive OSHA of Jurisdiction

Before turning to the merits of the Citation, Respondents’ challenge to OSHA’s scope of authority will be considered. UHS-Fuller titled a section of its brief, “Congress did not intend for OSHA to regulate in-patient psychiatric hospitals such as [the Worksite].” (UHS-Fuller Br. 65.) UHS-DE frames things somewhat differently, arguing that OSHA's presence in the healthcare field is “misguided and unnecessary.” (UHS-DE Br. 26-28, 55.)

Despite the rhetoric, neither Respondent provides support for finding that OSHA lacks jurisdiction over, or responsibility for, workplace safety at in-patient psychiatric hospitals or other places of employment. (UHS-Fuller Br. 65; UHS-DE Br. 55-59.) Each Respondent stipulated that (1) the Commission “has jurisdiction” over this matter, and (2) each was an employer as defined in the OSH Act.189 At best, Respondents appear to be arguing against permitting OSHA to cite medical facilities for hazards that cannot be eliminated.

Curiously, UHS-Fuller points to Integra Health Mgmt., Inc., No. 13-1124, 2019 WL 1142920 (OSHRC Mar. 4, 2019) as support for its contention. (UHS-Fuller Br. 65-66.) Integra addresses whether the employer violated the general duty clause by failing to “adequately address a workplace violence hazard-specifically, the risk of Integra’s employees being physically assaulted by a client with a history of violent behavior during a face to face meeting.” 2019 WL 1142920, at *1. The Commissioners unanimously upheld the applicability of the general duty clause to workplace violence experienced by employees working with individuals with mental illness or criminal backgrounds and found that the Secretary established a violation. Id. at *1, 6 n.5. None concluded that OSHA lacked jurisdiction over the hazard of workplace violence when assisting those with mental illness.190 Id.

Equally unpersuasive is UHS-DE’s citation to Am. Dental Ass’n v. Sec’y of Labor, 984 F.2d 823 (7th Cir. 1993).191 American Dental was not related to a citation for violation of the OSH Act. Instead, it was a petition from an industry group seeking review of a rule OSHA promulgated about occupational exposure to bloodborne pathogens. 984 F.2d at 824. The Seventh Circuit noted that the standard would impose an “extensive array of restrictions on the practice of medicine, nursing and dentistry.” Id. at 825. However, the circuit court was not free to conclude that the regulation of safety of the medical and dental workplace should be placed beyond OSHA’s purview. Id. at 827. And, when it looked at OSHA’s authority, it found that the rule was reasonable as applied to hospitals, nursing homes, and other employer-controlled workplaces. Id. at 830-31. Thus, American Dental supports finding OSHA has jurisdiction over facilities like the Worksite. Id.

There is no debate that Respondents knew the hazard was present at the Worksite and that they could take steps to reduce it.192 Section 5(a)(1) of the OSH Act does not provide an exemption for businesses that provide medical care, and the application of the general duty clause to such employers has been repeatedly upheld.193 See e.g., BHC Nw. Psychiatric Hosp., 951 F.3d 558 (D.C. Cir. 2020) (upholding a violation for workplace violence hazards at an in-patient psychiatric facility); UHS Pembroke, 2022 WL 774272, at *1, 9 (same); Beverly Enters., Inc., 19 BNA OSHC 1161, 1162 (No. 91-3144, 2000)(consolidated) (finding that the Secretary met the first three elements of establishing a violation of the general duty clause for hazards related to lifting and transferring patients, and remanding for further findings on the issue of feasibility of abatement); Integra, 2019 WL 1142920, at *1 (upholding violation of the general duty clause for the hazard of workplace violence); Waldon Healthcare Ctr., 16 BNA OSHC 1052, 1059-62 (No. 89-3097, 1993) (finding that the general duty clause applied to the hazard of virus transmission at nursing homes).194

Respondents also argue that the oversight of other regulators and an industry credential reduce the Secretary’s authority at the Worksite. (UHS-DE 53-59; UHS-Fuller 66-67.) Like other types of employers, Respondents must comply with laws other than the OSH Act. The Worksite is certified as a Medicare and Medicaid hospital by the CMS. (Stip. 14.) To maintain this certification, the Worksite must comply with federal regulations concerning “quality standards in hospitals.”195 The Worksite “is also subject to other federal laws and regulations and to the oversight of various federal agencies in addition to Complainant.”196

In addition to federal regulation, UHS-Fuller must comply with the DMH’s regulations and other state requirements.197 Like the Medicaid regulations, the state regulations focus on patient safety. (Ex. RD-8.) Respondents point to no other regulation or obligation that conflicts with their responsibilities under the OSH Act, including the obligation set out in section 5(a)(1). Further, the regulations cited by Respondents explicitly contemplate a role for OSHA. Id. Facilities are to notify DMH “immediately” of any complaint communicated to the facility by OSHA, as well as any “findings, citations, agreements or other notifications from OSHA.”198 Id.

DMH audited the Worksite a few months before OSHA’s investigation began.199 Its audit found that the facility failed to comply with DMH’s required staff-to-patient ratio. (Stips. 31-33; Ex. S-147 at 4-5, 13-14; Tr. 2539.) As a result, UHS-Fuller submitted a corrective action plan to DMH indicating what it would do to ensure compliance with the ratio in the future. (Stip. 33; Tr. 2225, 2536-37; Ex. S-147.) DMH accepted the plan. (Stip. 33; Tr. 2540.) DMH’s focus on the impact of staffing levels on patient care did not deprive OSHA of its authority to examine the effect of staffing levels on worker safety.

Besides complying with patient safety regulations, maintaining appropriate credentials is important to the Respondents’ business.200 The Worksite “is accredited by The Joint Commission (“TJC”) per its standards.” (Stip. 12.) Periodic surveys by TJC of the Worksite are required to maintain the credentials necessary for the business to receive reimbursement through federal programs for the care provided. (Tr. 2218.) These surveys look at compliance with TJC’s criteria. (Stip. 12.) The criteria include “organization quality, safety-of-care issues, and the safety of the environment in which care is provided.”201

Dr. Welch elaborated on the limitations of TJC’s surveys, particularly concerning employee health and safety. (Tr. 2192-93, 2196-2200, 2204-6, 2211, 2230.) Surveyors have broad authority to make requests, but “they certainly don’t review everything.” (Tr. 2193.) They do not review videos and do not review all documents. (Tr. 2192-93, 2196-97.) He described the process as “managed” and “very guided,” with “major parts” omitted or lost. (Tr. 2197, 2199.)

Other workplace violence cases have involved situations where the entity must comply with other regulations and for which an industry credential is important. In each instance, other regulators and/or the need to maintain a credential did not undermine the Secretary’s authority to cite the employer for the hazard of workplace violence. See UHS Pembroke, 2022 WL 774272, at *4 (noting the CEO’s responsibility to meet TJC and DMH standards); HRI, 2019 WL 989735 (discussing DMH requirements); UHS Centennial, 2022 WL 4075583, at *23 n.27 (rejecting argument that TJC or state statute precluded proposed abatement measures). See also Integra, 2019 WL 1142920, at *7 (rejecting the argument that public policy concerns related to serving people with histories of violent behavior precluded citation for a general duty clause violation); Waldon, 16 BNA OSHC at 1058 (finding abatement feasible even though the nursing home was in a “highly regulated business”).

Importantly, Respondents identify no other regulator or credentialing authority charged with protecting workers as opposed to those focused primarily on the health and safety of the consumers of the services provided at the Worksite. See Shamokin Filler Co., Inc. v. Fed. Mine Safety & Health Review Comm’n, 772 F.3d 330, 332-33 (3d Cir. 2014) (OSHA is the default agency for worker safety and health). There is no evidence that the DMH, CMS, TJC, or any other regulatory authority besides OSHA, concluded that the Respondents’ handling of workplace violence was appropriate or that there were no actions Respondents could take to materially reduce employee exposure to the hazard.202 Respondents cite no portion of the OSH Act, the implementing regulations, or precedent to support their contentions that an exemption for their industry is directly or implicitly in the OSH Act.203

IV.Analysis

This section discusses the two experts who testified and explains why Dr. Welch’s opinions are credited more heavily. After that, the legal standard for finding a violation of the general duty clause is set forth. The parties essentially agree on the first three elements of the Secretary’s burden, so those topics are addressed only briefly. Then the disputed issues related to Respondents’ existing abatement and the Secretary’s proposed abatement are discussed in detail. Finally, the rejection of Respondents’ affirmative defense is discussed.

IV.A.Expert Witnesses

Both sides offered the testimony of expert witnesses: Dr. Welch, who testified on the Secretary’s behalf, and Dr. Cohen, who testified for Respondents. Although each person satisfied the threshold requirements to be qualified to offer expert testimony, their respective opinions are not entitled to equal weight. See i4i Ltd. P’ship v. Microsoft Corp., 598 F.3d 831, 852 (Fed. Cir. 2010) (“When the methodology is sound, and the evidence relied upon sufficiently related to the case at hand, disputes about the degree of relevancy or accuracy (above this minimum threshold) may go to the testimony’s weight, but not its admissibility”), aff’d, 564 U.S. 91 (2011).

IV.A.1.Dr. Welch

Dr. Welch was certified as an expert in workplace violence at a behavioral health facility, an expert in psychiatry, and an expert in patient and clinical care at behavioral health hospitals. (Tr. 1766, 1768-70, 1789.) He practiced medicine as an attending psychiatrist at multiple hospitals. (Exs. S-145, S-146.) His experience included working as the chief of psychiatry at Tewksbury State Hospital (“Tewksbury”), which the DMH operates. (Tr. 1755-56.) At Tewksbury, he oversaw 180 patients and twelve physician psychiatrists. Id. He chaired the risk committee for higher-risk patients, including those with an increased risk for violence. (Tr. 1757.) And he provided services and training to staff regarding decreasing violence at facilities DMH operates. (Tr. 1757-58.) Besides his work at Tewksbury, he served as chief of psychiatry at another Massachusetts hospital, Melrose-Wakefield Hospital (“Melrose”), and as the Medical Director of Inpatient Psychiatry for Cambridge Health Alliance. (Tr. 1758-61; Ex. S-146 at 2.) For three years, he served on the Workplace Violence Committee for the parent company of Melrose. (Ex. S-146 at 4.) Judges have accepted Dr. Welch as an expert witness in many matters, including a case before the Commission.204

As part of his assessment, Dr. Welch spoke directly with four former employees and visited the Worksite.205 He extensively reviewed the information OSHA gathered in its investigation and medical literature. (Tr. 1789-91; Ex. S-397.) He reviewed the OSHA inspection report, the Citation, OSHA 300 illness and injury logs for the Worksite, and photos taken during the inspection. Id. He reviewed notes from the employee and employer interviews and the depositions of managers and administrators for the Worksite. Id. He reviewed reports of employee injuries compiled by Sedgwick and patient medical records. Id. He reviewed training materials, policies, and procedures, including the forms that were supposed to be used to document post-incident debriefings. Id. He assessed documents related to staffing patterns, incident reports, and the daily reports of the nursing supervisor or house officer. Id. He examined the use of security and panic buttons in other behavioral health facilities. (Tr. 1918, 1934, 1936-37, 2048-49; Ex. S-397 at 33, 38-40.) He reviewed the DMH’s inspection reports, meeting minutes, and loss control reports. Id. He reviewed records from the Attleboro Police Department. Id. He reviewed all the available video evidence. Id. His report includes a detailed analysis of the video of the assaults that occurred on July 18, 2019, and February 22, 2020. (Ex. S-397.)

Dr. Welch assessed and offered an opinion on: (1) the existence of a risk of injury due to workplace violence at the Worksite, (2) the recognition of the risk; (3) abatement measures that would materially reduce the risk of injury due to workplace violence; and (4) the feasibility of such abatement measures. (Tr. 1789.) At the hearing he was received as an expert on: (1) workplace violence in behavioral health facilities, (2) psychiatry, and (3) patient care or clinical care at a behavioral health facility. (Tr. 1770, 1788-89.)

IV.A.2.Dr. Cohen

Dr. Cohen is a physician specializing in forensic and general psychiatry. (Tr. 3121; Exs. RF-66, RF-67.) He is a staff psychiatrist with Olive-View UCLA Medical Center. Id. Dr. Cohen has testified as an expert in many matters related to the psychiatric care of patients. Id. In two Commission proceedings related to an OSHA citation against a behavioral health facility, judges accepted him as an expert in the field of psychiatry.206 He is qualified and accepted as an expert in psychiatry and patient care.

Dr. Cohen’s report and testimony focused on the engineering and control-based abatements Secretary proposed, as opposed to psychiatry or patient care.207 He was not asked to and did not reach an opinion on whether there were feasible methods to materially reduce the hazard of workplace violence at the Worksite. (Tr. 3136-37, 3274-75.) He did not visit the facility. (Tr. 3261, 3263.) He did not review any video of incidents of workplace violence. (Tr. 3139, 3263-65.) His review of documents was more limited than Dr. Welch’s.208

Dr. Cohen’s discussion of the proposed abatement was also less well-supported. Dr. Cohen’s experience with the clinical management of psychiatric conditions and forensic psychiatry makes him qualified to opine on psychiatry and patient care or clinical care at a behavioral health facility, and he is accepted as an expert in those two areas.209 However, he does not have substantial experience working in an inpatient psychiatric unit. (Tr. 3136.) He spends 60-70 percent of his time on paid litigation or trial-related work rather than on the practice of psychiatry.210 He has never provided advice on systemic workplace violence problems at a behavioral health hospital.211 His assessment of the abatement of the hazard was limited in time and scope. He seemed to have some difficulty recalling information about this Worksite and what he relied upon in reaching his conclusions. He was not asked and did not offer an opinion on Respondents’ existing abatement. (Ex. RF-67 at 1.)

Dr. Cohen claimed he rigorously assessed credible scientific literature to evaluate the proposed feasible abatement measures.212 Scrutiny reveals that Dr. Cohen rejected the testimony of employee witnesses in favor of anecdotes from other facilities. He did not interview direct care employees or listen to their testimony about what they experienced and observed at the Worksite.213 Instead, he cites a compilation of eight interviews with workers at a facility in Canada and argues that these anecdotes are more persuasive than the record evidence. (Tr. 3287-88; Ex. RF-101.) He generally condemned cross-sectional studies but then relied on them when they suited his position. (Tr. 3161-65, 3280.) He laid out his chosen methodology for assessing the proposed abatement but did not seem to apply it consistently. Id. Without support, he appeared to claim that security personnel are universally incompetent. (Tr. 3290, 3299-03, 3306-7, 3309-11, 3314.) The regular use of members of the Attleboro Police to address workplace violence at the Worksite undermines his testimony. (Tr. 3304.) Dr. Cohen is not accepted as an expert on the issue of whether the proposed abatements would materially reduce the hazard of workplace violence.

IV.A.3.Dr. Welch’s Testimony Is Entitled to More Weight

Dr. Cohen is sufficiently qualified such that his testimony satisfies the admissibility threshold to testify as an expert in psychiatry and clinical care. However, Dr. Welch’s experience and analysis better suited the facts of this case. His review was far more extensive than that of Dr. Cohen’s.214 His review included assessing the workplace violence prevention measures in place at the Worksite during OSHA’s investigation and the feasibility of the Secretary’s proposed abatement. (Ex. S-397.) Unlike Dr. Cohen, Dr. Welch opined directly on each aspect of the Secretary’s burden, including whether the abatement measures proposed would materially reduce the hazard and whether the proposals were feasible. (Tr. 1789, 3274-75; Exs. S-397, RF-67.) See BHC, 951 F.3d at 564 (discussing the relative weight the ALJ gave to two experts assessing workplace violence at psychiatric facilities and upholding the ALJ’s decision not to afford both opinions equal weight).

IV.B.Legal Standard

The general duty clause requires every employer to provide employees with a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. § 654(a)(1). As interpreted by the Commission, to establish a violation of this clause, the Secretary must show: (1) there was an activity or condition in the employer’s workplace that constituted a hazard to employees; (2) either the cited employer or its industry recognized that the condition or activity was hazardous; (3) the hazard was causing or was likely to cause death or serious physical harm; and (4) there were feasible means to eliminate the hazard or materially reduce it. Waldon, 16 BNA OSHC at 1058. The evidence must also show that the employer knew or, with the exercise of reasonable diligence, could have known of the hazardous condition. Otis Elevator Co., 21 BNA OSHC 2204, 2207 (No. 03-1344, 2007).

Despite agreeing with the Secretary on the appropriate test to determine whether there has been a violation of the general duty clause and stipulating the first three elements of that test, UHS-Fuller argues that Congress did not intend for OSHA to regulate in-patient psychiatric hospitals.215 In their Joint Pre-Hearing Statement, the parties agreed that the four-prong test, as articulated in cases like Waldon is the criteria for finding a violation of the general duty clause. Yet, UHS-Fuller now seeks to interject an additional element and demands that the Secretary prove the general duty clause applies to hazards that cannot be eliminated. (UHS-Fuller Br. 65-66; UHS-Fuller Reply Br. 2-3.)

The general duty clause has repeatedly been found applicable to workplace violence hazards. BHC, 951 F.3d at 563-67 (upholding a citation for a general duty clause violation for a workplace violence hazard at a psychiatric hospital); Integra, 2019 WL 1142920, at *4 (finding “allegation of workplace violence … is a cognizable ‘hazard’ under the Act”); UHS Pembroke, 2022 WL 7747272, at *1 (upholding a citation for a general duty clause violation for workplace violence hazard at a psychiatric hospital in Massachusetts). Non-precedential decisions also concluded that the general duty clause applied to workplace violence hazards.216 See UHS Centennial, 2022 WL 4075583, at *23 n.27 (finding the hazard of workplace violence at a behavioral health facility to be within the scope of the general duty clause and affirming the citation); HRI, 2019 WL 989735, at *2-8 (applying the Waldon test to assess a citation issued for workplace violence at a behavioral health facility); Megawest Fin., Inc., No. 93-2879, 1995 WL 383233, at *6 (OSHRCALJ May 8, 1995) (finding that the Secretary was “not precluded from asserting that workplace violence constitutes a general duty clause violation). The inability to eliminate a hazard does not preclude the Secretary from asserting a general duty clause violation. See, e.g., Sci. Applications Int’l Corp., No. 14-1668, 2020 WL 1941193, at *4 (OSHRC Apr. 16, 2020) (general duty clause applicable to drowning hazard that employer could not eliminate); Arcadian Corp., 20 BNA OSHC 2001, 2011 (No. 93-0628, 2004) (Secretary does not have to show that abatement would eliminate the hazard).

Having found the Waldon test appropriate, each element of that test is addressed below. However, the core disputed issue is abatement: Was Respondents’ existing abatement adequate? If not, did the Secretary propose feasible and effective abatement?

IV.C.Employee Exposure to a Hazard

The first element in Waldon’s four-part framework is whether “a condition or activity in the workplace presented a hazard.” 16 BNA OSHC at 1058. The parties stipulated that the hazard of workplace violence was present at the Worksite, Respondents’ employees were exposed to this hazard and suffered serious injuries from it.217 Even without the stipulations or inference, the record contains ample evidence of the hazard of workplace violence and employee exposure to it.218

IV.D.Recognition and Knowledge of the Hazard

The Waldon test’s second element examines whether the employer or its industry recognized the condition as a hazard. 16 BNA OSHC at 1058. “Healthcare is one of the most dangerous professions primarily due to employee injuries from WPV.” (Ex. S-134 at 8.) Respondents recognized the hazard of workplace violence in the context of patient-on-staff violence, as did the behavioral health industry.219 Dr. Welch concurred, explaining that the hazard is “well-recognized.” (Ex. S-397 at 1.)

Besides hazard recognition, the Secretary must also show the employer’s knowledge of the hazardous condition. SeaWorld, 748 F.3d at 1208-9; Puffer’s Hardware, Inc. v. Sec’y of Labor, 742 F.2d 12, 18 (1st Cir. 1984) (hazard recognition established when employer warned employees its elevator was hazardous). Establishing knowledge does not require showing that the employer was actually aware it was violating the OSH Act. SeaWorld, 748 F.3d at 1208-9 (actual knowledge or knowledge in the relevant industry is sufficient); Peacock Eng’g Inc., 26 BNA OSHC 1588, 1592 (No. 11-2780, 2017) (knowledge prong met when the employer knew or should have known of the conditions constituting a violation).

The Citation followed OSHA’s second inspection of the Worksite. Its previous inspection, in 2016, resulted in OSHA issuing UHS-Fuller a Hazard Alert Letter indicating the hazard of workplace violence was present at the Worksite. (Ex. S-22 at 2.) Respondents also had actual knowledge of its presence through frequent employee injury reports.220 Injuries from workplace violence and employee concerns about the sufficiency of the response to such reports were discussed at management meetings and at the Corporate Employee Safety Council (“CESC”) meeting.221 Notes from the CESC meeting reflect a continued rise in injuries related to workplace violence at UHS-DE affiliated behavioral health facilities and state that “staff expressed concerns that the work is not safe and the complaints are not being addressed.”222 UHS-DE identified the Worksite as having one of highest employee injury rate among all its affiliates. (Tr. 1133, 1266-65, 1264-69, 1279, 1321, 1333; Ex. S-397 n.2.) Although not appropriately preserved, the facility’s surveillance system captured incidents of workplace violence at the Worksite. These videos were available for review by supervisors and, in some instances, were reviewed by senior management.223

IV.E.Serious Physical Harm

A hazard is likely to cause death or serious physical harm if the likely consequence of employee exposure to the hazard would be serious physical harm. Morrison-Knudsen Co./Yonkers Contracting Co., 16 BNA OSHC 1105, 1122 (No. 88-572, 1993). Respondents stipulated that patient violence and assaults have resulted in serious injuries. (Stip. 24.) The record is replete with evidence of serious and potentially life-altering injuries related to the cited hazard in the relevant period.224 Most physical confrontations at the Worksite involved patient attacks on staff. (Exs. S-1B, S-11, RF-32, RF-33.) Dr. Welch opined that the hazard as it existed at the Worksite was likely to cause serious injury or death. (Ex. S-397 at 1.) Many injuries from the inspection period were serious enough to keep employees from returning to work for long periods and included concussions; head, jaw, and neck injuries; back, leg, and knee strain; bites, and scratches from patients with bloodborne diseases.225 The Secretary established the hazard caused and was capable of causing serious physical harm and possibly death.

IV.F.Existing Abatement

Having shown that a recognized hazard capable of causing serious physical harm to employees was present at the Worksite, the next consideration is what action the employer took to address the hazard. The requirement to provide a workplace free of recognized hazards is limited to preventable hazards. Nat’l Realty & Constr. Co., Inc. v. OSHRC, 489 F.2d 1257, 1265-66 (D.C. Cir. 1973). When an employer has already undertaken methods to address a hazard, the Secretary must show that those methods were inadequate. U.S. Postal Serv., Nat’l Ass’n of Letter Carriers, 21 BNA OSHC 1767, 1773 (No. 04-0316, 2006); UHS Pembroke, 2022 WL 774272 at *8; Integra, 2019 WL 1142920, at *12 n. 14 (indicating that the threshold question is whether the employer’s abatement was inadequate); Roadsafe Traffic Sys. Inc., No. 18-0785, 2021 WL 5994023, at *6 (OSHRC Dec. 21, 2021) (citing Ala. Power Co., 13 BNA OSHC 1240, 1243-44 (No. 84-357, 1987) and finding existing safety program inadequate).

Respondents point to various actions they say constituted adequate abatement.226 The Secretary counters that the existing abatement was inadequate as conceived and implemented. (Sec’y Br. 65.) See CF&T Available Concrete Pumping, Inc., 15 BNA OSHC 2195, 2198 n.9 (No. 90-239, 1993) (noting that the “mere existence of a safety program on paper does not establish that the program was effectively implemented on the worksite”); Pepperidge Farm Inc., 17 BNA OSHC 1993, 2007-8 (No. 89-265, 1997) (employer failed to implement abatement it identified).

Through expert testimony and otherwise, the Secretary showed that Worksite’s abatement efforts were ineffective.227 He identified significant gaps between how Respondents said they mitigated the hazard and what occurred. Frequently, documents or employees’ experiences did not support Respondents’ claims. See BHC, 951 F.3d at 565 (discussing the disconnect between stated policies and actual practices); Kaspar Wire Works, Inc., 18 BNA OSHC 2178, 2182, n.12 (No. 90-2775, 2000) (finding that while witness claimed her practices remained unchanged, the data belied the claim), aff’d, 268 F.3d 1123 (D.C. Cir. 2001).

Respondents did not consistently prepare employees for the hazard of workplace violence. Then, after incidents occurred, Respondents did not consistently perform adequate investigations. Not properly investigating incidents prevented Respondents from addressing issues adequate reviews would have identified. Frequently, there was not enough staff for the number and severity of the patients to implement the protocols Respondents identified as necessary to mitigate the hazard appropriately.

This section discusses: (1) the persistent occurrence of injuries from the cited hazard, (2) deficiencies in employee training, (2) ineffectiveness of the post-incident debriefing process as implemented, (3) how staff levels made it difficult to implement the abatement the WVPP requires, (4) deficiencies in milieu management, and (5) how adequate abatement requires more than appropriate medical treatment.

IV.F.1.Persistent Occurrence of Injury

Injury rates from the cited hazard are one aspect of assessing the effectiveness of an existing abatement approach. SeaWorld, 748 F.3d at 1215 (existing safety procedures held inadequate where evidence showed employer’s training and protocols did not prevent continued injuries). Respondents argue that the OSH Act does not provide “certainty” about eliminating the risk of injuries. (UHS-Fuller Br. 68-69.) This case is in a far different category from those where degrees of certainty are at issue. Staff were routinely assaulted and suffered injuries from aggression and the response to it.228 Some multiple times.229 Respondents like to blame one patient for a rise in violence in April 2019 (before the citation) and then blame another rise in July 2019 on a different patient.230 These were not aberrant one-off occasions. While the individual patients changed, having aggressive and sometimes violent individuals at the Worksite was routine.231

The level of violence at the Worksite was an outlier among for-profit behavioral health facilities.232 UHS-DE considered the Worksite “high risk” among its affiliates in 2019. (Tr. 1279, 2093.) There were hundreds of incidents of aggression in 2019, requiring 69 employees to seek medical attention for their injuries.233 The number of injuries and workplace violence incidents may not be dispositive, but they support the Secretary’s claim that the abatement implemented at the Worksite was inadequate.234

IV.F.2.Training

An MHS who began working at the facility near the start of OSHA’s investigation explained that the training she received did not prepare her for the situations she faced at the Worksite. (Tr. 65, 100-1, 217.) For example, it did not address techniques to intervene in sexual assault, although confronting such situations was required.235 Further, the training included only brief discussions of various physical maneuvers to mitigate being injured from patient violence. (Tr. 218, 321.) In practice, some of the maneuvers were not “very successful.” (Tr. 99-101, 218, 282; Ex. S-55.) For instance, she was repeatedly thrown off by a patient and kicked in the face as she and other staff members tried to restrain him with the techniques taught. (Tr. 99-101; Ex. S-443A.) Aggressive patients injured multiple employees during the same incident. (Tr. 101-3; Ex. S-443A.)

Management employees differed in their view of whether the training consistently prepared employees for the hazard of workplace violence. The CFO conceded that “one of the things we need to do better is orientation and training.” (Tr. 408-10.) In 2019, he witnessed about one restraint a month and saw employees assaulted. (Tr. 393, 395.) He was involved in routine meetings about staff injuries and patient aggression. (Tr. 395-97.) He described gaps in the training, noting that some new hires have little or no prior experience with patient care, let alone the complex psychiatric patients treated at the Worksite. (Tr. 230, 332, 408-10.) In contrast, the CEO claimed that the verbal de-escalation techniques taught prevented many incidents and described the training as “robust.” (Tr. 2354-55.)

Dr. Welch reviewed the training materials related to the cited hazard. He opined that the high rates of behavioral incidents and employee injuries related to violence showed that the training was inadequate to keep employees safe from patient aggression.236 Trained staff were sometimes unable to manage aggressive patients. (Ex. S-397 at 58.) Further, the low number of staff in the units, their physical capabilities, and the high staff turnover undermined the training’s effectiveness at abating or mitigating the hazard. (Tr. 1886-92; Exs. S-123, S-397 at 34, 46-47.)

UHS-DE claims UHS-Fuller utilized the “resources” it provides to address the cited hazard. (UHS-DE Br. 23, 50.) Those included a Loss Control Department whose purpose is to “promote a safe work environment,” and the Staff Safety Initiative, a program to provide extra assistance to address workplace violence.237 The Secretary points out that the Worksite was not selected to be in the touted Staff Safety Initiative. (Sec’y Br. 17-18; UHS-Fuller Br. 37, n.7.) UHS-DE focused the extra resources provided through the Staff Safety Initiative on the facilities with the highest injury rates. (Tr. 1526, 1534-35, 1691.) The Worksite’s injury rate placed it in this category, but UHS-DE did not select it for the program.238 Respondents failed to show how the program mitigated the hazard at facilities, like the Worksite, which did not receive the “extra resources” to address workplace violence. (Tr. 1520-26, 1691-92.)

Site visits by UHS-DE’s Loss Control Department noted issues with the training as implemented at the Worksite and the impact of inexperienced staff. (Exs. S-52, S-53, S-54, S-55, S-59, S-61.) Employees either did not know the appropriate restraint techniques to minimize injuries to themselves or were unable to use the techniques in the conditions at the Worksite. Id. Similarly, how to call for additional assistance to address violence and what to do when responding to such a request were addressed during training. (UHS-Fuller Br. 34, 50-52, 69, 77.) Still, in practice, both new and “seasoned” employees did not always know what to do.239 Viewing the training in connection with WVPP’s overall implementation, it did not effectively mitigate the hazard and was insufficient to prevent many injuries.240

IV.F.3.Post-Incident De-briefing & Camera Reviews

Respondents acknowledged the importance of reviewing workplace violence incidents to reduce the number and severity of subsequent occurrences.241 They cite debriefing as a component of their WVPP and claim to perform post-incident debriefing with camera reviews after incidents of workplace violence. (Tr. 447, 1133-34, 2605-6, 2734-35; Exs. S-55 at 2, S-121.)

UHS-Fuller claimed there was “a debriefing with staff after every code” and that it maintained records of these debriefings. (UHS-Fuller Suppl. Br. 6.) At best, this statement goes well beyond the record. Ms. Britto, a supervisor, was not asked whether debriefings always occurred. She only said she was involved in debriefings and described a time, before OSHA’s investigation, when she completed written debriefing forms. (Tr. 2951-52.) For incidents that occurred when she was not working, she did not claim she spoke to those involved or completed the debriefing form called for by Respondents’ policies. (Tr. 2951.) Instead, she said she would “reference any codes in regards to staff injury, any staff questions and at times review video.” Id. She did not claim she would discuss the incident or create or maintain a record of such incidents. Id. Nor did she make any claims about what other unit managers did after codes. (Tr. 2951-52.)

The issue is not whether debriefings ever occurred at the Worksite. The issue is whether debriefings consistently occurred and their scope. Management claims about debriefing every incident were contradicted by the testimony from front-line workers and other evidence.242 The debriefing documentation does not cover every incident during which an employee was injured, let alone every incident of workplace violence.243

SM frequently witnessed or was otherwise involved in responding to violent incidents at the Worksite. (Tr. 157.) Violent events occurred “more often than not” on her shifts.244 She participated in between 30 to 50 restraints of patients in the two years she was at the Worksite. (Tr. 65, 157, 159-60.) She was never shown video of incidents in which she had intervened and could only recall one post-incident debriefing during her entire employment. (Tr. 157-58, 160; Ex. S-11.) No one debriefed her after she was assaulted on August 22, 2019, or after she intervened to stop a sexual assault on February 22, 2020. Id.

SM’s experience was not unique. Debriefing forms for about forty incidents that occurred during OSHA’s six-month investigation were produced. (Ex. S-11 at 72-161.) The summaries from loss control visits indicate more employee injuries than those documented in the debriefing forms.245 For example, in June 2019, there were 49 restraints of aggressive patients but only about ten incomplete debriefing forms for the month.246

The debriefing forms were often incomplete and did not include interviewing the injured employee.247 Ms. Bricault identified issues at the Worksite with the interviews of injured staff. She highlighted the need for managers to conduct such interviews so they could understand the reason for patient aggression.248 No debriefing forms were produced for the July 18, 2019 riot or for when the MHS interrupted the sexual assault. (Tr. 157-58; Exs. S-11, S-178, S-397 at 14; Sec’y Br. 26.)

Dr. Cohen acknowledged that debriefing employees about incidents is important and recognized it as one component of a WVPP. (Tr. 3373.) He agreed that camera reviews could be an important part of post-incident investigations, noting that they allow people to capture behavior before the violence and see how the staff intervened before injuries occurred. Id. Such reviews can help determine improvements in staff interventions.249

Dr. Welch shared Respondents’ understanding of the importance of debriefings that include camera reviews. (Ex. S-397 at 30, 41, 54, 56.) He considered such reviews “a well-accepted tool for identifying opportunities for improvement, and for educating staff.” Id. at 30, 54. Although the policy of debriefing staff after every incident of patient aggression was “standard,” Respondents’ implementation of the policy was “inconsistent and ineffective.” Id. at 53-57. The written debriefings failed to capture even “devastating and remarkable” events. (Ex. S-397 at 14, 16, 53, 56.) The process often did not include staff involved in violent incidents or a review of the video.250 By not obtaining the input of the involved staff members, Respondents “simply cannot learn” from errors and improve. (Ex. S-397 at 14, 54, 56.) Not accurately investigating and debriefing episodes of severe violence “prevents critical clinical information from being shared” and “materially increases the risk of workplace injury due to violence” at the Worksite. (Exs. S-11, S-397 at 56.)

Information from incident reviews is only beneficial if it is “used” to improve staff safety. (Exs. S-51 at 2; S-53 at 1.) Because Respondents failed to ensure their debriefing policies were followed, this abatement method did not effectively reduce the hazard to the extent feasible.251

IV.F.4.Staffing

Respondents cite staffing provisions in their WVPP as another aspect of the Worksite’s existing abatement.252 They fail to elaborate on what those policies and procedures are or, more importantly, as implemented, how effective they are at abating the hazard. Despite this lack of precision, Respondents recognition of the importance of adequate staffing to reduce incidents of workplace violence and mitigate the hazard when it occurs is apparent.253

Dr. Haltzman and Ms. Legend heard complaints from workers about the impact of staffing levels on employee safety. (Tr. 396-97, 2334-35, 2761.) Ms. Bricault also heard concerns about staffing and would mention these in the loss control meetings she led with supervisors for the Worksite. (Tr. 1192-93, 1307-8.) Other employees raised concerns to management about staffing levels being insufficient for safety and requested higher levels of staffing. (Tr. 160, 242, 324-25, 396-97, 2761.)

There was no on-site security team to intervene when staff is assaulted. (Tr. 72, 178-79, 565, 929, 2258; Ex. S-397.) Instead, Respondents task the direct care providers with ensuring patient care and safety as well as their own. Id. During its investigation, OSHA learned from employee interviews that there was not always enough staff to respond to workplace violence incidents. (Tr. 562, 565, 929; Ex. S-24 at 8-10.) The frequent police calls indicate that often there were neither enough people in absolute numbers nor enough people with the right skills to manage assaults or riots.254 Having police in care units was “dangerous” and “unsafe,” as “they come onto the unit with guns.” (Tr. 2782-83, 2786.) “There are lots of different things that can happen when police enter the unit.”255 While the CEO appeared to prefer that staff not contact the police, she did not explain who could have promptly provided the assistance needed during situations like the July 18, 2019 riot. (Tr. 2782, 2784-87.)

Dr. Welch and Officer Brunelli raised concerns about needing police intervention to manage behavioral health emergencies. (Tr. 664-65, 667, 669-70, 727-28; Ex. S-397.) Dr. Welch considered it “highly traumatic” for patients to be handcuffed and for other patients to witness such an intervention. (Ex. S-397 at 13.) Nonetheless, for events like July 18th, given the staffing levels in place that evening, the staff did not have “any alternative to restore basic safety for the patients and staff on that unit other than to call the police.” Id. Officer Brunelli agreed that if there had been enough staff members in the unit to handle the situation, the police would not have been needed, and this could have prevented or reduced the violence. (Tr. 677-78.)

Dr. Welch reviewed documents related to nursing staff patterns, daily reports of the nursing supervisor, incident reports, 1:1 staffing levels, DMH inspection reports, and other documents.256 Based on his review, he concluded there was “substantial evidence of the inadequacy of staffing” at the Worksite. (Tr. 1880.) At times, staff were “clearly overwhelmed and outnumbered. They’re wrestling, brawling with the patients.” (Tr. 1811, 1820-21.) As implemented, the staffing policies resulted in frequent understaffing, which exacerbated, rather than mitigated, the hazard. (Tr. 1810-11, 1887-99, 2121-23; Exs. S-123, S-397 at 37.)

Staffing levels also made it difficult to implement the WVPP’s mitigation measures. For instance, most units had only three people assigned to work there on the third shift.257 Yet, the restraint techniques taught can require seven or more individuals.258 Two people are needed for the upper body, two for the legs, and sometimes one person for the head and one for the wrists. (Tr. 100, 223, 1920, 2873-74.) Additional people not involved in the physical restraint itself are also necessary. (Tr. 1811-12, 1820-21; 2873-74; Ex. RF-7.) One person should continue to do verbal de-escalation. Id. One person should lead the code, and one more person should direct other patients away from the incident so that the unit does not become more violent.259 It was not atypical for restraints to require multiple people for up to an hour. (Tr. 104-5, 222-23, 249, 331.) Nor was it unusual for multiple patients in one unit to require restraint simultaneously.260

During the investigation, there were times when “there weren’t enough people” present to manage violent and aggressive patients appropriately.261 Respondents consistently aimed to staff the units at the minimum level DMH requires for nursing care.262 The adolescent unit was extremely volatile in the days before and after July 18, 2019. (Ex. S-397 at 9-10, 13.) Despite the rise in acuity, staffing did not change significantly during this period.263 Similarly, on the evening of February 22, 2020, the video and police reports suggest that the Worksite lacked capable staff in sufficient numbers to supervise the patients who became assaultive towards staff early in the evening.264

AAD Abundo explained that the pattern of insufficient staffing contributed to the hazard of workplace violence, particularly when there was not enough staff to assist in emergencies. (Tr. 568-69.) Dr. Welch reached the same conclusion. (Tr. 1810-13, 1841-42, 2121-23; Ex. S-397.) Chronic low staffing compounded the other flaws in Respondents’ implementation of their WVPP and other abatement measures. (Tr. 1880-85, 1892-93.)

IV.F.5.Managing the Milieu

The Worksite’s WVPP called for several actions to manage the milieu, or environment of care, including: (1) “controlled facility access;” (2) “processes to alert staff of patient aggression”; (3) “continual monitoring of patient behavior and communication of warning signs of past and potential assaults of staff”; (4) “environment of care rounding and loss control site visits …. .” (UHS-Fuller Br. 3; Exs. S-62, S-74, S-166.)

As with the other aspects of abatement, milieu management cannot be assessed in a vacuum. Staffing limitations impacted the ability of employees to manage the milieu effectively. (Tr. 2257-58; Ex. S-397 at 41.) “Staff create a stabilizing presence” by, among other things, “engaging” with patients, “supporting positive activities, and responding to patient needs … in a timely and empathetic manner.” Id. Unmet patient needs are a risk factor for patient violence. Id.

Respondents recognized the connection between violence and a lack of engagement in meeting patient needs.265 How Respondents handled milieu management in practice prevented it from effectively mitigating the hazard. MHSs described the difficulty of providing quality care with too few staff. (Tr. 178-79, 324-28, 330-32.) It made it difficult to appropriately engage patients and timely assist them, as called for by the WVPP.266

The incidents of July 18, 2019 and August 22, 2019 highlight some gaps in milieu management at the Worksite. Patient observation rounds and reporting information about patient status were not enough to prevent violence when there was not enough staff to address the observations.267 Similarly, the code response protocol called for at least one person to be charged with keeping patients away from the violence. (Exs. RF-7, RF-14.) Witnessing recent violence is a predictor of future violent adolescent behavior. (Tr. 3279.) Likewise, while the Worksite had “controlled access,” the assistance of armed police was sometimes necessary. (Stip. 27; Ex. S-397 at 13.) The police officers’ actions, even when necessary for safety and done at the staff’s direction, still resulted in traumatic experiences for patients.268

Loss control visits occurred regularly and identified shortcomings in milieu management. (Tr. 1235-37, 1244, 1246; Exs. S-50, S-55, S-53, S-58, S-60, S-61, S-68.) But if Respondents do not address the findings from such assessments or do not allocate sufficient resources to change what is occurring at the Worksite, the assessments lose their effectiveness. Persistent insufficient staffing undermined the potential effectiveness of the milieu management called for by the WVPP.

IV.F.6.Medical Treatment

Respondents also tout their approach to medical treatment as part of their abatement. Its expert emphasized the treatment of mental illness as the effective method of modifying patient aggression. (Tr. 3169.) A doctor or nurse practitioner sees each patient at least once a day. (Tr. 2297.) In addition, the assigned doctor, social worker, unit manager, and nurse periodically review each patient’s medical treatment. (Tr. 2284, 2287.) These meetings include discussions of patients exhibiting aggressive behavior and the appropriate level of precautions for patients.269

Dr. Welch agreed that effective treatment helps to mitigate the hazard. (Ex. S-397.) Other actions either support the treatment or undermine its effectiveness. Id. For instance, persistent insufficient staffing undermined the potential effectiveness of this abatement method. Two MHSs described the difficulty of providing quality care without enough staff.270 There was not always enough staff to limit patients' exposure to the violence that occurred.271 Witnessing violence can make patients more likely to become violent and undermines otherwise effective clinical treatment. (Tr. 177-78, 329-31, 1279, 1826-30; Exs. S-68, S-397, S-409.) Even when medical care is the best available, the hazard of workplace violence will not be reduced to the extent feasible without other actions. (Ex. S-397.)

IV.F.7.Respondents’ pre-citation abatement measures were inadequate as implemented

UHS-Fuller argues it “had a comprehensive WVPP,” but describes a program not borne out by the evidence.272 Much of the training and orientation did not align with the Worksite’s actual conditions. See SeaWorld, 748 F.3d at 1206, 1215 (finding existing safety procedures inadequate); BHC, 951 F.3d at 565 (incomplete and inconsistently implemented safety protocols were inadequate to address the hazard of patient-on-staff violence). Time-consuming verbal de-escalation techniques require sufficient personnel to handle other tasks while the attempt to verbally de-escalate a patient continues. Likewise, the restraint techniques required more employees than were readily available in each unit.273

Injuries persistently occurred, several times a month. (Exs. S-11, S-55, S-56, S-63, S-68.) SM’s assault on August 22, 2019 highlights deficiencies in Respondents’ existing abatement. The level of staff met Respondents’ policies. Yet, when SM was attacked, the only two other people in the unit could not assist her promptly. One was conducting observation rounds which required checking on all 18 patients, and the other was handing out medication.274 Both tasks required focused attention. The MHS responsible for checking on the patients was in a difficult position, faced with the choice of aiding her colleague during an assault or continuing the critical work of checking on the other patients. Likewise, it is unsurprising that a nurse passing out medication might not realize a co-worker was yelling for help down a hallway. SM had no way to directly alert someone not involved in patient care when she needed assistance. The techniques taught to her in training were insufficient to stop the attack or end it promptly once it began. There were not enough other people in the unit to hear her yelling and respond to it right away. The lack of a prompt response interfered with the desire to maintain a therapeutic milieu. And there was little attempt to learn from the situation.

The Secretary established that, as implemented, the existing abatement was inadequate.

IV.G.Proposed Abatement

Having established the existing abatement’s inadequacy, we turn to whether the proposed abatement is capable of being put into effect and would materially reduce the hazard.275 The proposed feasible abatement includes four main actions: (1) provide personal panic alarms; (2) maintain adequate staffing, including security staff focused on preventing and responding to violent events; (3) conduct prompt, comprehensive investigations of all incidents of workplace violence; and (4) provide adequate training.276

UHS-Fuller, citing A.H. Sturgill Roofing, Co., 27 BNA OSHC 1809 (No. 13-0224, 2019), claims that the Secretary proposed various alternative abatement methods. (UHS-Fuller Br. 79, 90, 92; UHS-Fuller Suppl. Br. 1-7.) It insists that the Secretary argued that the hazard could only be materially reduced through a combination of actions. (UHS-Fuller Suppl. Br. 2-5.) This position is not supported by the testimony quoted in its Supplemental Brief or other evidence.277

Like in other cases concerning workplace violence, the Secretary proposed multiple actions to reduce the hazard.278 He offered expert testimony that each proposed action, individually, would materially reduce the hazard. (Tr. 1878, 1917-18, 1936, 1956-57, 1977; Ex. S-397.) There is no contradiction in arguing that each measure would individually result in a material reduction while also viewing each as part of a comprehensive process to reduce the hazard to the greatest extent feasible. To prove a violation, the Secretary only needs to establish one feasible and effective method of inducing a material reduction in the hazard. UHS Pembroke, 2022 WL 774272, at *9-12. Nothing precludes the Secretary from offering additional evidence. Id. (finding communication devices and equipment for de-escalation each were feasible and effective methods of abating workplace violence hazard).

Further, even if Respondents thought the Secretary was proposing various alternatives, Respondents have not implemented any of the proposed abatement in the manner the Citation describes. For one, employees did not have personal panic alarms when working close to patients and in areas out of sight of other staff. Second, contrary to the Secretary’s proposal, there was no trained security staff without patient care responsibilities on any shift, let alone all three shifts. Nor was staffing maintained at levels adequate to address changes in patient acuity and the patient census.279 Third, Respondents had not implemented a system of prompt, comprehensive investigations of all incidents of workplace violence. The Secretary also calls for debriefings to include the retention of video footage of all incidents of workplace violence. Respondents failed to retain footage even when subpoenaed. Fourth, although Respondents trained employees, the training did not adequately prepare new employees to respond to the hazard in the context it occurred at the Worksite. The techniques called for more people than were available in the units, and the method for calling for additional assistance was flawed. Thus, the resources available did not match what the training identified as needed to implement the techniques properly.

Sturgill presented a different situation. There, the Commission concluded that any one of five actions would be sufficient abatement for the cited hazard. 2019 WL 1099857, at *8-10. In contrast, no single action can abate the hazard at issue here.280 Rather than alternatives, the Secretary proposed a series of abatement measures, each individually capable of materially reducing the hazard and collectively a process.281 Id. See also Nat’l Realty v. OSHRC, 489 F.2d at 1266-67 (“All preventable forms and instances of hazardous conduct must, however, be entirely excluded from the workplace”).

To satisfy the abatement requirement, “the Secretary need only prove that at least one of the measures he proposed was not implemented and that the same measure is both effective and feasible in addressing the alleged hazard.” UHS Pembroke, 2022 WL 774272, at *9. See also BHC, 951 F.3d at 564 (Secretary proposed a “menu” of abatement options to materially reduce the hazard of workplace violence); Beverly Enters., Inc., 19 BNA OSHC 1161, 1190 (No. 91-3144, 2000) (consolidated); Pepperidge Farm, 17 BNA OSHC at 2033-34; UHS Centennial, 2022 WL 4075583, at *26-27 (discussing Sturgill). Reliable expert testimony is sufficient to establish that an abatement method would materially reduce the hazard. See Integra, 2019 WL 1142920, at *13-14 (finding that reliable expert testimony is sufficient to establish that an abatement method would materially reduce a hazard, even if the expert cannot quantify the reduction). As the D.C. Circuit explained:

the Secretary need not quantify the extent to which that program and its component parts “would have materially reduced the likelihood” of patient-on-staff violence. Nat’l Realty, 489 F.2d at 1267. Instead, the Secretary satisfied the General Duty Clause’s test by establishing that a comprehensive workplace safety program would more effectively and consistently apply measures designed to reduce patient-on-staff violence than [the employer’s] present system did.

BHC, 951 F.3d at 565. Alternatively, successful use of a similar approach elsewhere can establish effectiveness. See Pepperidge Farm, 17 BNA OSHC at 2034.

The Secretary established that each of his proposed methods of abatement was effective and feasible. Respondents failed to rebut his evidence.

IV.G.1.Personal Panic Alarms

One step of the Secretary’s proposed feasible abatement methods is to provide personal panic alarms and training on such equipment:

Provide personal panic alarms for all employees who may work in close proximity to patients and who work in areas out of sight of other staff. Provide training on this equipment and ensure that the equipment is maintained in working order at all times.

In short, this aspect of the proposed abatement calls for providing employees with the means to quickly summon assistance and ensure they know how to use the device.

Respondents recognized the need for communication devices as part of an effective abatement program.282 They sidestep the limited availability and utility of the devices provided. At the time of OSHA’s inspection, employees were supposed to carry a walkie-talkie device when escorting patients off the unit. (Tr. 83-84; Ex. S-63.) The walkie-talkie connected to one other device, which remained on the unit. Id. There was only one pair of devices per unit. Id. Those working on the unit had to shout or manage to get to the phone at the nurses’ station to request assistance with violent or aggressive patients. (Tr. 85-86.)

As part of his review of this abatement method, Dr. Welch assessed scientific literature, professional guidelines, OSHA guidelines, practices at other hospitals, clinical experience, the hearing testimony, and conversations he had with other employees. (Tr. 1936-49; Exs. S-397 at 34-35; S-418, S-420 at 4, 11.) He discussed one study that found that panic alarms had a significant effect on staff safety. (Tr. 1940-42.) Overall, the scientific literature on personal panic alarms was “not very developed,” but he pointed to other sources that strongly support using panic alarms.283 For one, unlike screaming for help or using phones that are only available in limited fixed locations, personal panic alarms allow for discreet requests for assistance during emergencies. (Tr. 1937-44.) Silent alarms enable employees to ask for help without the escalation that screaming for assistance creates. (Tr. 1936-37.)

Direct care providers corroborated his view that the proposal would materially reduce the risk of injury from workplace violence. (Tr. 1935-36; Ex. S-397 at 25, 35.) An MHS explained how the existing approach to obtaining assistance prolonged her exposure to the hazard. A patient repeatedly whipped her in the back with a flashlight. There was no phone she could reach, so she “just screamed and hoped” someone would hear her. (Tr. 77.) Another MHS who was supposed to perform only safety checks had to stop her critical work and assist until the unit nurse eventually heard them.284 The nurse came over, but more help was needed. Id. It took more time before someone else could complete calling the code over the intercom. Id. And then, the responding individuals had to arrive from other units before they could assist her. Id. The MHS continued to struggle with the patient the entire time. Id. Without phone access, she was “alone” at the time of the incident. (Tr. 77, 176-77.) While other people were at the Worksite, if she could not get to a phone or make herself heard during the attack, their presence did not matter. Id. A few months later, the same MHS had to leave a patient being sexually assaulted when she could not stop the attack by herself. The MHS had to leave the patient’s room to yell for help in the hallway before she could return to the patient to try again to stop the assault from continuing. (Tr. 137; Exs. S-32, S-442.)

Another benefit of the proposed abatement over the existing approach is that the devices mitigate the “ripple effect” that occurs when patients hear calls for assistance. (Tr. 176-77, 327, 331.) When patients hear such codes called over the intercom, some act out, forcing the staff to address additional issues besides the one that triggered the initial call for assistance. Id. Activating a personal alarm was still advantageous even if an employee could access a phone because it is less obvious and, therefore, less likely to escalate a potentially violent situation. (Tr. 1936-37.) Such alarms allow employees to obtain assistance without making the situation worse. Id. They can mitigate the risk of assault and the seriousness of incidents. (Tr. 1940-42.) The employees’ real-world experience and knowledge are particularly informative. They know the nature of the hazard at this Worksite and explained why personal panic alarms would materially reduce it.285

Respondents also argue that personal panic alarms would not prevent workplace violence incidents. Their argument ignores the mitigative effect of prompt responses to requests for assistance. The MHS explained how she could not call for assistance during her assault and had to leave a patient assaulted to obtain more assistance during another incident. In neither instance could she request aid at the start of the incident. When employees can summon help quickly and effectively, this reduces the likelihood of an employee needing to engage a violent patient alone.286 In addition, when patients know there is an alarm system and security, there is a deterrent to violent behavior.287

Dr. Cohen essentially argued for a wait-and-see approach. Perhaps, at some point, more scientific studies would conclusively establish panic alarms’ benefit in the Worksite’s conditions.288 However, Respondents had already tested the effectiveness of not having such devices. The MHS cited the ineptness of her yells for help and made clear how a personal panic alarm could have resulted in a prompter response to her assault. (Tr. 77.) Likewise, having effective radios for staff to communicate with each other would have prevented or reduced some of the violence on July 18, 2019. (Tr. 677.) Personal panic alarms can mitigate risks associated with workplace violence.289 Dr. Welch’s testimony and the other evidence in the record outweigh Dr. Cohen’s ambivalence.

This abatement method is also known to the relevant industry. OSHA reviewed workplace violence prevention systems in place in about a dozen healthcare facilities in its Preventing Workplace Violence: A Road Map for Healthcare Facilities (“OSHA WVP Roadmap”). (Ex. S-423.) The OSHA WVP Roadmap provides concrete examples of how healthcare facilities successfully utilized workplace violence prevention policies and procedures. Id. It identifies panic buttons as an engineering control and discusses how one healthcare facility added mobile devices beyond the fixed panic buttons to facilitate obtaining assistance with actual or potentially violent patients. Id. at 16, 23.

Other Commission cases found that providing employees with individual communication devices would materially reduce the hazard of workplace violence in healthcare facilities. In UHS Pembroke, the Commission found that the behavioral health facility’s reliance on walkie-talkies and an intercom system was “inadequate.”290 Notably, that facility had more walkie-talkies per patient care unit than the Worksite but still lacked enough for every employee to always carry one. 2022 WL 774272, at *9. Even when combined with the intercom system, the walkie-talkies were not sufficiently effective at abating the hazard. Id. The system required an employee to leave a potentially violent situation to access the phone or audibly call out for assistance. Id. Other devices “allow employees to immediately seek help without audibly calling for help over a walkie-talkie or with a loud voice,” actions which “can agitate a distressed patient and escalate the situation.” Id. at *10. Such devices reduce “the likelihood of staff becoming victims of patient violence.”291 Id. The Commission went on to conclude:

it is apparent from the record that in the face of patient aggression and the potential for imminent violence, verbally asking or yelling for help in the presence of the distressed individual is not equivalent to silently and discreetly summoning help via a personal panic alarm. For all these reasons, we find that the Secretary has established that … providing personal panic alarms is both feasible and effective.

The Secretary also calls for training on the equipment and ensuring that the devices are maintained in working order at all times. Respondents and others in the relevant industry agree that employees need an effective way to obtain assistance for addressing violent or aggressive patients. (Exs. S-397, S-418, S-423.) To be effective, the staff must know how to summon assistance, and the devices must be effective. (Ex. S-397 at 35.) The walkie-talkies did not always work. (Tr. 566, 1950.) During the inspection period, contrary to the Worksite’s policies, staff lacked walkie-talkies when escorting patients outside the unit.292

Other similar facilities have systems like the one called for by the proposed abatement. (Tr. 1951; Exs. S-397 at 34-35, S-150 at 5; S-423.) There is no evidence that financial or technical barriers precluded using devices at the Worksite. (Tr. 1022, 1951; Exs. S-150 at 6; S-397 at 34-35, S-423.) The proposed abatement method is feasible and would materially reduce the hazard.

Having shown that the existing abatement was inadequate and that the provision of personal panic alarms would be feasible and effective in materially reducing the hazard, the Secretary established a violation of the general duty clause. While further proof is not required, the undersigned will address each proposed abatement.293

IV.G.2.Staffing

Two of the Secretary’s proposals relate to staffing. First, the Secretary proposes that a feasible means of abatement includes having “trained security staff without patient care responsibilities.” Such staff should be available “on all three shifts” and be able “to assist in preventing and responding to violent events.” Second, the Secretary proposes adjustments so that there is adequate staffing “to safely address changes in patient acuity and the patient census,” as well as enough staff to perform tasks safely.

IV.G.2.a.Trained Staff Dedicated to Security

The Worksite site had no staff dedicated to security. (Tr. 72, 565, 645, 804, 929, 1033, 1067, 2054.) Instead, MHSs served as security in addition to their patient care duties. (Tr. 72, 565.) When an employee cannot address aggression or violence alone, they can request assistance from their co-workers.294 On the second and third shifts, most of those responding to such requests are direct care employees assigned to take care of patients in the various units.295 When responding, they leave their assigned patients, and likely the unit, to help with the aggression. (Tr. 1918-19.) The Secretary proposes as a feasible and acceptable means of abatement: “Provide trained security staff without patient care responsibilities on all three shifts available to assist in preventing and responding to violent events.”

The Secretary identified multiple foundations to support a finding that providing trained security staff without patient care responsibilities would materially reduce the hazard. Dr. Welch did a “very extensive literature review of the published medical and scientific literature on many topics relevant to workplace violence.” (Tr. 1791.) His review included looking at specific factors relevant to workplace violence, such as the use of security. Id. He personally had been involved in many physical restraints.296 Based on his review and experience, he concluded that having security personnel who did not have other patient care responsibilities would materially reduce the risk of injury from the hazard of workplace violence. (Tr. 1917-18.)

His conclusion is supported by, among other things, considering the events of July 18, 2019. The employees were unable to restrain the patients properly. (Tr. 1810-12.) There was no on-site security or crisis intervention team to assist when more than one patient needed restraint. (Tr. 565, 1812.) Respondents’ training and policies indicate that an individual not involved in the restraint should act as the call leader to coordinate the response. Often, there were not enough people to do this or other aspects of proper restraint technique necessary to ensure the process is safe for employees.297

Dr. Cohen acknowledged that, sometimes, when there is a motivated offender, a ready target, and no security, “then you have violence.” (Tr. 3220.) However, he argued this premise did not hold for the type of violence seen at the Worksite. Id. This opinion is rejected. Respondents destroyed the best evidence of the nature of the violence experienced. Further, Dr. Cohen did not attempt to use the available evidence to assess the nature of the hazard as experienced by the employees at the Worksite. He did not visit the units, talk with direct care employees, or view the preserved videos.

Dr. Cohen also agreed that studies have concluded that “security measures may be helpful” in addressing workplace violence. (Tr. 3174-75, 3184, 3283; Ex. RF-67.) Still, he argued that there was inadequate scientific proof that the proposed abatement would materially reduce the hazard.298 Id. For support, he pointed to part of a study by Due et al. (the “Due Study”), which focused on the use of manual restraints in Australia.299 The Due Study involved the collection of anecdotes and was qualitative, not quantitative in nature. (Tr. 3300; Ex. RF-74.) It showed a correlation, but not a causation, between levels of violence and “shows of force.”300 The Due Study did not examine the relationship between security personnel and injuries to staff. (Tr. 3302.) It does not support eliminating or reducing security at behavioral health facilities like the Worksite. (Tr. 3300-1; Ex. RF-74.)

Actual experiences at the Worksite identify the weakness of stretching the Due Study too far. “Shows of force,” like those reviewed in the Due Study, were a part of the Worksite’s planned response to aggression. (Tr. 2305.) They were effective in Dr. Haltzman’s experience as the facility’s Medical Director. Id. Having enough staff around the patient can help the patient realize they will not win and calm down without further intervention. Id. Dr. Welch and the police officers who testified agreed, explaining how the presence of a security staff alone has a deterrent effect.301

Dr. Cohen also suggested a negative correlation between security and a therapeutic environment. However, he overstates the conclusions of the articles he relies on for support. For example, like the Due Study, the articles by Bowers et al. indicate a correlation without finding that security causes violence.302 Unsurprisingly, when there are violent behaviors, it is expected that staff, including security if available, would respond. (Tr. 1927-28.) Further, the studies did not compare facilities where local police are regularly brought into patient care units like at the Worksite.

To give another example, Dr. Cohen emphasized the “breadth of the analysis” in the article by Shannon, et al., but that article bases its conclusions on mentions of security in nineteen reports out of hundreds.303 Of those nineteen reports, some indicated that “security resulted in a more therapeutic ward,” but at least one reached a different conclusion. (Tr. 3297; Ex. RF-83 at 5.) As the authors discuss, the difference of opinion regarding the use of security may be attributable to significant uncontrolled variables, including differences in employment relationships, role function, and training of the security employees. (Tr. 1924, 3297-98; Ex. RF-83.) The authors take no position on whether using security personnel protects staff against violence. (Tr. 3299; Ex. RF-83.)

Dr. Cohen elevates anecdotes from other workplaces over employees’ experience at this Worksite.304 His assertion that security would negatively impact the therapeutic environment does not appear to be grounded in persuasive scientific or practical evidence.305 As with personal panic alarms, Dr. Cohen argues that the abatement method cannot be considered effective until someone conducts a formal scientific study that leads to definitive results proving the benefit in the Worksite’s exact conditions.306

Such an exact level of proof is not required. Dr. Welch acknowledged that no double-blind placebo-controlled studies showing the efficacy of on-site security at behavioral health facilities had been conducted. (Tr. 1915-17, 1921, 1933-34, 2050.) Double-blind placebo-controlled studies are appropriate for medication assessments, but the design is not appropriate for every hazard. (Tr. 1989, 3161, 3347.) Such studies are particularly ill-suited to assessing the use of security or other types of staffing. (Tr. 1989, 3160, 3347.) Thus, the absence of such evidence did not undermine his conclusions about this abatement method’s feasibility or effectiveness in abating the hazard as it existed at the Worksite. (Tr. 1914-17, 1933-34, 1989-90; Ex. S-397.) There is strong other support for its effectiveness. Id.

Respondents try to drag the analysis of the feasibility and effectiveness of the abatement into weeds through Dr. Cohen’s compilation of various papers.307 When these papers are reviewed, it is apparent that they do not speak directly to the issues before the Commission. Further, as even Dr. Cohen concedes, such studies are not the only way to assess whether an abatement method will materially reduce the hazard of workplace violence at this Worksite.308 Besides studies, community standards, regulatory guidance, and experience support using security to materially reduce the hazard. (Tr. 1933-34; Ex. S-397.)

Multiple witnesses discussed how security could reduce the hazard. SM cited security as a measure that would abate the hazard and permit MHSs to focus more on patient care.309 Police officers who had responded to various incidents at the Worksite discussed how security can mitigate and prevent the hazard and related injuries. For example, it could reduce the safety risk from patient elopements through prevention, responding quicker when elopements occurred, and by providing helpful information if police response became necessary.310 Unlike some people they confront in the community, the police do not have opportunities to build rapport with the patients and do not know them before they are dispatched to the Worksite.311 In contrast, on-site security personnel can build the type of rapport that later helps if intervention to prevent aggression or limit violence is necessary. (Tr. 680; Ex. S-423.) Officer Sellers explained how on-site security would alleviate the police from responding to some incidents and mitigate the impact of any such responses that were still necessary. (Tr. 1066-67, 1082, 1088.) Dr. Welch agreed. Security personnel can assist with addressing aggression before it reaches the level where police are dispatched to the Worksite.312

Respondents do not assert that they could not afford to hire employees to focus on security. UHS-DE provided a target “goal” for the amount spent on staffing for the Worksite. (Tr. 375-76; Stip. 52.) The CFO tracked the number of employees for each patient to see if they were in line with the budgeted amounts for staffing. (Tr. 379-80, 497-98.) The CFO and CEO could receive salary bonuses if budget targets were met or exceeded. (Tr. 426-28.) The CEO’s salary could double through budgetary efficiencies. (Tr. 427-28.) Not meeting the targets did not mean the facility was not profitable, but it did impact bonuses.

Multiple witnesses provided evidence about other healthcare facilities that use dedicated security to address and mitigate violence. Officers Brunelli, Sellers, and Fleming explained how the security team at a general hospital near the Worksite helped address workplace violence. (Tr. 680-81, 714, 731, 804-5, 1033, 1067.) Noting its widespread use, Dr. Welch described it as “eminently feasible.” (Tr. 1934; Ex. S-397.) A former employee and Dr. Cohen also discussed the presence of security at other facilities providing behavioral health care.313 The Secretary showed that this proposal was feasible and would be effective at materially reducing the hazard.314

IV.G.2.b.Sufficient Staff for Patient Acuity, Census & Safety

The proposal for having dedicated security relates to the proposal requiring adequate staffing to address the number of patients and their acuity. As addressed in the assessment of Respondents’ existing abatement, the level of direct care staff was repeatedly inadequate for the acuity of the units. Intervention required more people than were available on the individual units and sometimes more than were at the Worksite. To address this, the Secretary argues that a feasible and acceptable means of abatement is to:

Maintain staffing that is adequate to safely address changes in patient acuity and the patient census. Staffing levels must allow for safety of staff during admission of new patients, behavioral health emergencies, 1:1 patient assignments, staff breaks, and the accompaniment of patients off-unit (cafeteria, fresh air breaks, gym). Staffing levels must also allow for and ensure safety during therapeutic activity groups and recreational periods.

(Ex. S-148.) Dr. Welch opined that maintaining direct care staffing at a level adequate to address changes in patient acuity and patient admissions would significantly reduce the hazard of workplace violence. (Tr. 1878, 1888; Exs. S-123, S-397 at 36.) He cited the July 18th riot, the February 22nd sexual assault, multiple restraints, and an elopement as examples of when the Worksite lacked adequate staffing and employees faced elevated risk from the hazard.315 Scientific literature supports the connection between adequate staffing, in terms of numbers and capabilities, and lower rates of violence and staff injuries.316

Increased staffing when acuity rises means more people are available to help address actual or potential violence. (Tr. 327-28, 324-25, 1893-94.) SM, who was involved in many situations at the Worksite where the cited hazard was present or likely, succinctly described the connection between staffing and the hazard: “The more people you have, the more resources that you have available to help you. It’s really as simple as that. Is it going to be easier to take down somebody with three people or easier to take down somebody with eight people? There’s a big difference there.” (Tr. 179.)

Respondents hide from the fact that they recognized the critical connection between increasing direct care staff during times of acuity and improving employee safety. (Tr. 1901; Ex. RF-1.) Dr. Cohen indicated that patient observation, as in keeping an eye on the patients, is “probably the primary method of prevention” for the hazard. (Tr. 3189.) Yet, Respondents constantly aimed to minimize staffing levels.317 Any deviation required administrative approval and explanations in writing.318 An administrator, who sometimes is off-site, makes the final decision on whether personnel can be added beyond the state minimum, even though doctors and medical professionals are always on-site. Id.

Respondents’ approach to staffing eliminated room for variability and was inadequate to address the hazard at this Worksite.319 Even when the necessary approvals and justifications were in place, the system required calling people in from home, which required time and prevented prompt responses to changes in acuity or census. (Ex. S-397 at 38.) Dr. Welch acknowledged that he was not suggesting that “more staffing is always better.” (Tr. 1901-2.) The staff's training, qualifications, and skill impact the number needed. (Tr. 1893, 1895, 1901.) For this reason, he supports the abatement calling for “adequate” staffing, meaning sufficient in terms of both number and qualifications.320

In arguing against this proposed abatement method, Dr. Cohen relies on some of the same anecdotal and limited studies addressed above.321 He also cites two associational studies that examined levels of staff and violence. (Tr. 1904, 1911; Exs. F-67 at 11, S-432, S-433.) None of the studies were conclusive.322 Further, looking at association without causation is not particularly helpful. (Tr. 1905-8.) Following Respondents’ interpretation of the studies, one could reach the erroneous conclusion that having no staff will lead to no injuries and the safest units. (Tr. 1908.) Common sense and experience expose that fallacy.323

Like the discussion around security, associational studies do not counter the other evidence about the efficacy of this proposed abatement. None of the articles Dr. Cohen discussed undermine Dr. Welch’s opinion or the other record evidence supporting this abatement.324 As with security, community standards, guidelines, and experience support adequately staffing the units for the number of patients and their acuity. (Tr. 1916; Ex. S-397.) The Secretary sufficiently established this abatement method’s effectiveness at materially reducing the hazard.

As for feasibility, the Secretary can establish that a means of abatement is feasible by showing that “conscientious experts familiar with the industry would prescribe those means and methods to eliminate or materially reduce the hazard.” Arcadian, 20 BNA OSHC at 2011. Ensuring adequate staffing for the hazard of patient on staff violence has been upheld as a feasible means of abatement.325

The Worksite’s policies already called for a minimum staffing level and permitted deviations for acuity. (Ex. RF-1.) All units were to “maintain sufficient staff in order to provide a safe environment.”326 Id. Dr. Welch opined that increasing staffing levels was “quite feasible.” (Tr. 1916-17; Ex. S-397.) He reviewed the direct care staff-to-patient ratios at other similar facilities nearby.327 He determined they have higher direct care staff-to-patient ratios than the Worksite.328

Respondents failed to adequately rebut the Secretary’s evidence that these proposed actions for staffing were feasible and would be effective at abating the hazard.

IV.G.3.Investigate All Incidents of Workplace Violence

The Secretary proposes that it would be feasible and effective for Respondents to: (a) “implement a system of prompt, comprehensive investigations of all incidents of workplace violence resulting in injury to staff or near miss, to include consistent performance of root cause analyses and review of surveillance footage”; (b) “maintain video footage of all incidents of workplace violence, including one full hour before and after each assault, for a period of two years following each incident”; and (c) “ensure that managers and staff are trained on injury and near miss reporting and investigative procedures.”329 UHS-Fuller argues that this would not prevent workplace violence and is not sufficiently supported by scientific evidence. (UHS-Fuller Br. 97-98.) However, post-incident debriefing has been upheld as a feasible and effective means of abatement for the hazard of workplace violence.330

Debriefing is a standard accepted practice in behavioral health hospitals.331 The importance of “systematic, consistent, and effective debriefing after patient assaults and behavioral health emergencies” is broadly recognized. (Ex. S-397 at 54.) Comprehensive debriefing of workplace violence incidents, including a camera review of both ones that result in violence and those where violence nearly occurred, permits facilities to learn from adverse events. Id.

Respondents agree that debriefings and incident investigations are an important way to mitigate the hazard.332 When assessing the Worksite’s program for managing patient aggression, UHS-DE emphasized the importance of debriefings and camera reviews as methodologies to reduce workplace violence. (Ex. S-121 at 4.) It assessed its affiliates, including UHS-Fuller, to ensure they conducted debriefings with the involved staff after “an aggression/violent episode” and reviewed surveillance footage of such incidents. (Tr. 1701-12; Exs. S-55, S-121.) After seeing higher injury rates, Respondents claimed to implement a more expansive approach to camera reviews of incidents at the Worksite in 2019. (Tr. 1133.) Ms. Bricault said this was implemented to determine “if there was something they could do to prevent injuries … and to afford better protection for their staff and prevent workplace violence.” Id.

Respondents object to assessing “near miss” incidents, claiming doing so would be a “waste of resources.” (UHS-Fuller Br. 95-96.) UHS-Fuller attempts to characterize the Secretary’s proposal as requiring debriefings when patients merely say, “unkind things.” Id. at 95. The characterization is disingenuous. The Secretary’s proposal is limited to near misses, i.e., situations that nearly resulted in injury from violence. It does not include cases where injury was conceivable but unlikely. Dr. Welch described a near miss as a situation where a patient was violent and destroyed property but did not injure staff. (Tr. 1975.) Reviewing such situations ensures that the proper steps are in place to avoid injuries and build on successful interventions. (Tr. 1974-75.)

Further, the Secretary’s proposal aligns with what Respondents’ policies already required.333 The WVPP’s called for documented debriefings of “all patient episodes and incidents, inclusive of episodes that result in aggression or assault.”334 Although the phrase “near-miss” is not used, the WVPP required debriefings incidents of violence even when they did not result in assault or injury.335 Aggression alone is sufficient to trigger the debriefing process. (Ex. S-166 at 3-4.) The process is supposed to include: (1) debriefings with staff, (2) an examination of the sources of the aggression, (3) antecedent behaviors, and (4) the staff’s attempted interventions. Id. at 3. The data from such debriefings is to be analyzed so it can be used “for the corrective action process.” Id. Separate from the WVPP’s requirements, Respondents also mandated the review of video of workplace violence incidents and the retention of videos from assaults or “physical altercations.”336

Dr. Cohen conceded the value of post-incident investigations, including reviewing camera footage. (Tr. 3214-3215, 3371-76.) Scientific studies were not needed to conclude that measuring information facilitates tracking a problem. (Tr. 3371-72.) He argued not so much that this abatement proposal would be ineffective but that it was unnecessary because of Respondents’ existing practices.

Dr. Cohen’s belief about how Respondents investigated incidents of workplace violence at the Worksite is not adequately supported. See BHC, 951 F.3d at 565 (discussing the ALJs finding that the employer failed to implement the “policies it had on paper to prevent [workplace] violence.”). There is no evidence of debriefings for many incidents of workplace violence that caused injuries.337 And the reviews that did occur were often cursory and incomplete.338

Dr. Welch concluded that this abatement method would materially reduce the hazard of workplace violence at the Worksite. (Tr. 1956-57; Ex. S-397.) Appropriate assessments of violence and risk should look for antecedents and predictive factors. Just looking at the assault itself may lead someone inaccurately to conclude it was unprovoked or came about without warning.339 Examining what occurred before the assault allows staff to learn triggers for violent behavior and assess how to improve interventions. (Tr. 1969-71.) Ms. Legend also acknowledged that “looking at the precursor episodes” frequently provided information about managing situations before a patient became so violent that a restraint was necessary.340 Respondents’ written directions for reviewing video from incidents of violence reflect this understanding in that they call for examining the thirty minutes before an incident and assessing what could have been done to avert it. (Ex. S-11.) Respondents also acknowledged the importance of looking at the intervention and what occurred thereafter.341

Dr. Welch discussed how reviewing and retaining video footage of what occurred before and after assaults is an important part of risk assessment.342 It allows for the identification of precursors and predictive factors for violence. (Tr. 1969-71.) Reviewing such incidents can show how staff could have “intervened differently” and ensured the violence was not repeated. (Tr. 1960-61, 1971.) Video debriefing is “one of the most effective” aspects of mitigating workplace violence. (Tr. 1971.) It provides “the most accurate and detailed evidence of incidents of violence and staff responses to these events.” (Tr. 1819-20, 1971; Ex. S-397 at 56.) It avoids issues where employees do not remember exactly what occurred and can be used to show employees techniques that worked (or did not). (Tr. 1971-72.)

The two-year retention period also facilitates “meaningful review” of workplace violence incidents.343 Retaining such videos facilitates review “by the appropriate personnel, including those that have the ability to make changes to the existing program.” Id. Video provides detailed information on how to limit violence from particular patients. (Tr. 1972-93.) It is common for patients to be re-admitted to the same behavioral health facility. (Tr. 1972.) Experience with a patient allows workers to understand a patient’s particular precursors to violence. (Tr. 1973-74.) This enables employees to know the signs of violence and potentially de-escalate the patient with the methods that were previously successful. Id.

The Secretary’s proposal also calls for training on investigative and reporting procedures. As addressed, Respondents’ policies required comprehensive and documented debriefings for all incidents of workplace violence and that video of assaults or physical altercations be copied to preserve it from being overwritten by the camera system. At the hearing, the risk manager still did not appear to understand the Camera Policies, their importance, or the implications of not adhering to them.344 Training will help address the disconnect between the policies and the practices. (Ex. S-397 at 53-57.)

There appeared to be either a lack of comprehension or perhaps desire to implement the debriefing program Respondents had “on paper.” BHC, 2019 WL 989734, at *42; SeaWorld, 748 F.3d at 1216 (finding that employer could have anticipated that abatement measures it applied after other incidents would be required); Babcock & Wilcox Co. v. Sec’y of Labor, 622 F.2d 1160 (3d Cir. 1980) (upholding a violation of the general duty clause when the company knew of the hazard and had a policy to mitigate it but did not effectively implement the policy). The Secretary showed that the deficiencies in the existing process could be addressed by training and taking steps to ensure debriefings included the consistent performance of root cause analyses, review of surveillance footage, and retaining footage. Consistent, thorough post-incident investigations with a review of available video would materially reduce the hazard of workplace violence.345

Respondents already had a policy to review all workplace violence incidents, including those that did not result in staff injury. (Tr. 1976-77.) Such reviews were supposed to include staff interviews and watching available camera footage. (Tr. 1133, 1303, 1238-39; Exs. S-11, S-55.) The policies also called for videos of assault or physical altercations to be maintained.346 The record shows this was not done, but there is no support for finding the proposal is technically or economically infeasible. (Tr. 1976-77.) The Secretary established that conducting prompt, comprehensive investigations of all incidents of workplace violence resulting in injury to staff or a near miss is a feasible method of abatement. See SeaWorld, 748 F.3d at 1215 (extending actions taken with one animal to all similar work was feasible); Con Agra, Inc., 11 BNA OSHC 1141, 1144-45 (No. 79-1146, 1983) (finding extension of existing abatement feasible).

IV.G.4.Adequate Training

Besides the training discussed in connection with the other proposals, the Secretary also proposes specific training for new employees: “Ensure that new employees have training to respond to violent patients prior to exposure.”347

Dr. Welch concluded that employees at the Worksite were not appropriately trained. (Ex. S-397 at 31, 58.) Rather than recognize deficiencies in the training, Respondents adopted a “blame the victim” approach for injuries that occurred when employees attempted to implement the techniques in the units.348 Dr. Welch reviewed the segments of video the police preserved of the July 18, 2019 incident. He believed the video showed that the employees were neither the right type of employee (such as security) nor adequately trained.349 Instead of recognizing the limitations of the existing training program, Respondents blamed the employees for injuries related to cited hazard.350

Employee testimony also supports finding that improved training would materially reduce the hazard and the severity of injuries experienced by employees. CFO Rollins believed that more training would mitigate workplace violence at the Worksite. (Tr. 408-10.) An MHS explained the inadequacy of the existing program. For example, she had no training in intervening when a sexual assault was in process. When confronted with that situation, she was unable to stop the assault from continuing. (Tr. 87-88, 155-56.) Sometimes the techniques taught were ineffective outside of the classroom. Other times there was insufficient staff to implement them as taught.

Dr. Cohen was more equivocal on the effectiveness of training as part of a program to abate the hazard. He admitted it might help but had not found evidence that it would reliability or significantly reduce the risk. (Tr. 3384.) Dr. Cohen’s review was less extensive and less reflective of conditions at the Worksite, so Dr. Welch and other evidence about the effectiveness of training is credited over his testimony.

There is no evidence that Respondents could not implement the proposal for technical or economic reasons.351 The Secretary established that adequate training was a feasible abatement step that would materially reduce the hazard.

IV.G.5.Respondents’ Unsupported Claims of Adverse Consequences and Economic Infeasibility

Through expert testimony and other evidence, the Secretary showed that all of his proposals were feasible and would materially reduce the hazard. See Integra, 2019 WL 1142920, at *13-14. The Worksite’s WVPP and other policies already call for most of the proposed measures. See BHC, 951 F.3d at 566. Similarly, most actions were already implemented at other behavioral health facilities and could be used effectively at the Worksite. (Tr. 1934, 1951; Exs. S-397, S-423.) Such evidence shows the efficacy and feasibility of the Secretary's proposed approach. See Pepperidge Farm, 17 BNA OSHC at 2034 (viewing “successful use of a similar approach elsewhere” and expert testimony as elements of an effective abatement method); Wheeling-Pittsburgh Steel Corp., 10 BNA OSHC 1242, 1246 n.5 (No. 76-4807, 1981) (finding abatement method feasible when it had previously been used at the cited facility); Integra, 2019 WL 114920, at *13-14 (finding expert testimony indicating the hazard of workplace violence would be materially reduced was sufficient); UHS Centennial, 2022 WL 4075583, at *56-57 (finding similar abatement technologically and economically feasible). In addition, once the Secretary establishes that there is a feasible and effective method that materially reduces the hazard, the burden shifts to the employer to produce evidence showing or tending to show that using the Secretary’s methods will cause consequences so adverse as to render their use infeasible.352

UHS-Fuller suggests, without substantiation, that the Secretary’s proposals “may adversely affect the care and treatment” of patients.353 In so doing, it attempts to cast all it does under the umbrella of patient care and to imply that the Secretary can advise no action for the protection of employees because, in theory, the measure could impact patient care. Id.

UHS-Fuller sets up a false choice between patient and staff safety. The Secretary does not prescribe actions to alter Respondents’ clinical care procedures. Respondents put the clinical care of patients in issue by claiming it as part of their abatement and arguing, without support, that the Secretary’s abatement proposals might not be therapeutic. In response, the Secretary produced evidence that Respondents’ existing approach was not therapeutic and that implementing the proposed abatement actions would benefit both patients and staff. (Tr. 2257-58; Ex. S-397.)

The undersigned need not resolve whether the abatement in place at the time of the Citation was appropriately therapeutic for patients to determine it was inadequate for employee health and safety. Conceivably, although effective at addressing a hazard, a proposed abatement method could be so contrary to the services a business provides that the method ceases to be feasible. Here, the undersigned does not confront such a situation. See Chevron Oil Co., 11 BNA OSHC 1329, 1334 (No. 10799, 1983) (finding that the benefits afforded by the abatement method greatly outweighed the potential harm that could be caused).

The Secretary established that the proposed abatement measures were safe and effective for patient and staff safety through expert testimony and other means. Dr. Welch and others explained how protecting employees facilitates patient care. “Security staff can and are safely and effectively utilized to support patient and staff safety in psychiatric treatment settings, both to mitigate patient violence and to decrease staff injuries resulting from patient violence.”354

As for economic feasibility, by showing that the proposed methods were implemented elsewhere and through other evidence, the Secretary met his burden and established that the proposed methods were feasible. (Ex. S-397.) Respondents did not introduce evidence about their financials. UHS-DE acknowledged that Worksite had more injuries than over 150 other behavioral health facilities it operated.355 Respondents knew other facilities implemented additional abatement measures beyond what was done at the Worksite.356 They do not rebut the Secretary’s proof of economic feasibility, despite having ready access to a large pool of comparable facilities.357 There is no evidence that implementing the proposed abatement would threaten the viability or existence of UHS-Fuller, UHS-DE, or the two collectively.358 Nor did Respondents present sufficient evidence of an inability to pay for the abatement.359

The Secretary met his burden of establishing feasibility. Respondents failed to establish adverse consequences or economics rendered the proposals infeasible.

IV.H.Affirmative Defense of Fair Notice is Rejected

UHS-Fuller argued that the general duty clause is impermissibly vague, and it lacked fair notice of how to abate the hazard.360 UHS-Fuller and UHS-DE knew workplace violence was a hazard.361 They knew employees were exposed to, and suffered injuries from, this hazard at the Worksite. (Stips. 18-24, 27-29, 49-51.) Respondents also knew of OSHA’s concerns about workplace violence generally and specifically at the Worksite.362 Nor is there any dispute that experts familiar with the industry would consider the hazard when prescribing a safety program.363 See Nat’l Realty, 489 F.2d at 1266.

Knowledge of the hazard provides adequate notice to satisfy the requirement of due process. See e.g., Cape & Vineyard Div. of New Bedford Gas & Edison Light v. OSHRC, 512 F.2d 1148 (1st Cir. 1975) (finding that actual knowledge of the hazard provides fair notice); Bethlehem Steel Corp. v. OSHRC, 607 F.2d 871, 875 (3d Cir. 1979) (finding that fair notice is addressed by the requirement that the hazard is recognized); Babcock, 622 F.2d at 1164 (concluding that either the employer or its industry must be aware of the hazard).

In BHC, the employer made similar arguments to those that Respondents now raise.364 951 F.3d at 566. The D.C. Circuit’s reasoning is applicable and compelling. The Secretary identified specific measures needed to meet the general duty clause’s requirements and protect staff from patient violence at a behavioral health facility. In BHC, as is the case here, the proposed “measures accord with well-known industry best practices and peer-reviewed research.” Id. Further, “the need for full and consistent implementation of such measures is or should be evident to reasonably prudent managers of any major psychiatric inpatient hospital.” Id. See also A.C. Castle, 882 F.3d at 38, 43-44 (rejecting fair notice claims and limiting the doctrine’s scope).

Akin to SeaWorld and BHC, the application of the general duty clause in this matter “turns in significant part on the employer’s failure to extend throughout its workplace the very safety measures it had already applied, albeit inconsistently.” Id. Just as Chief Judge Rooney in BHC was troubled by the disconnect between the employer’s written policies and its actual practices, the undersigned also finds that Respondents, contrary to their claims, did not implement the abatement called for by their policies and procedures. Like in BHC, Respondents here “can hardly object” that they were “blindsided by the utility of measures” they “already embraced, at least on paper.” Id.

UHS-Fuller claims that knowledge of the hazard and actual, frequent employee exposure to it is insufficient to show notice. (UHS-Fuller Br. 104-06.) It argues that the Secretary also had to show UHS-Fuller knew it could materially reduce the hazard by adopting the measures the Secretary proposes. Id. at 106. Such knowledge is not required for a Citation to pass constitutional muster. The recognition necessary to satisfy due process “relates to knowledge of the hazard, not recognition of the means of abatement.”365 Requiring knowledge of the Secretary’s proposed abatement is not appropriate. Employers are not bound to adopt the proposed abatement. They can defend against an alleged general duty clause by arguing they were using a different abatement method other than the abatement method the Secretary suggests.366 The proposed abatement measures were available to and readily knowable by Respondents. Indeed, much of the Secretary’s proposed abatement calls for the actual implementation of the policies and procedures Respondents identified as methods to protect employees and minimize serious injuries from workplace violence.367 Respondents knew of the practices and procedures within their control that would decrease the likelihood of patient on staff violence and minimize the severity of such incidents. Yet, they failed to implement these actions fully and appropriately. See SeaWorld, 748 F.3d at 1216 (finding that employer could have anticipated that abatement measures it applied after incidents would be required); Babcock, 622 F.2d at 1165 (affirming finding of liability when the company failed to take feasible precautions to reduce the risk of injury). In short, the proposed abatement measures were specific, in accord with industry practice, and consistent with Respondents’ unfollowed policies.

Respondents’ existing measures for addressing patient-on-staff violence were insufficient, and they failed to implement feasible measures capable of materially reducing the hazard. See CF&T, 15 BNA OSHC at 2198, n.9 ( (noting that the “mere existence of a safety program on paper does not establish that the program was effectively implemented on the worksite”); Pepperidge Farm, 17 BNA OSHC at 2007-8 (employer failed to implement abatement it identified). Neither the need for implemented policies nor the contents of appropriate abatement were unknown to Respondents.368 See Integra, 2019 WL 1142920 at * 14, n.15 (rejecting constitutional vagueness challenge because the proposed abatement measures were “available to, and readily knowable by the industry.”)

V.Penalty

“Section 17(j) of the Act, 29 U.S.C. § 666(j), requires that when assessing penalties, the Commission must give due consideration to four criteria: the size of the employer's business, the gravity of the violation, the employer’s good faith, and any prior history of violations.” Hern Iron Works, Inc., 16 BNA OSHC 1619, 1624 (No. 88-1962, 1994). When determining gravity, the Commission considers the number of exposed employees, the duration of their exposure, whether precautions could have been taken against injury, and the likelihood of injury. Capform, Inc., 19 BNA OSHC 1374, 1378 (No. 99-0322, 2001), aff’d, 34 F. App’x 85 (5th Cir. 2000) (unpublished). Gravity is typically the most important factor for determining the penalty. Id.

During the hearing, the Secretary amended the citation classification from repeat to serious. (Tr. 628-29). In his brief, the Secretary argues that based on the record, the penalty should be the maximum amount for a serious violation issued in 2019, $13,260. (Sec’y Br. 93-94). See 84 Fed. Reg. 213, 219 (Jan. 23, 2019). Citing the frequency and severity of injuries experienced at this Worksite from the hazard, the Secretary argues that the violation’s gravity warrants the maximum penalty. (Sec’y Br. 93-94.) In his view, the other penalty factors (size, good faith, and history) do not support reducing the penalty from the maximum for a serious violation. Id.

After considering the record and penalty factors, the undersigned finds that a penalty of $13,260 is appropriate. The hazard caused serious injury and was capable of causing death. Many employees were exposed to the hazard, with several suffering serious injuries. Respondents employ too many individuals to warrant a reduction for size. (Tr. 485.) Nor are there grounds for a reduction based on history.

As for good faith, while Respondents took some steps to mitigate the hazard, they failed to implement feasible abatement measures they identified. More importantly, the destruction of evidence during and after the close of OSHA’s investigation runs strongly against reducing the penalty for good faith. Had the maximum penalty not been appropriate based on gravity alone, an increase for lack of good faith would have been appropriate.

The foregoing constitutes the findings of fact and conclusions of law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that:

1. The Secretary’s July 2, 2021 Motion in Limine Concerning Respondents’ Extensive Destruction of Highly Relevant Video Footage is GRANTED in part and DENIED in part.

2. Citation 1, Item 1 for a violation of section 5(a)(1) of the OSH Act is AFFIRMED as SERIOUS, and a penalty of $13,260 is ASSESSED.

4. The Secretary’s July 12, 2021 Motion for Sanctions is GRANTED in part and DENIED in part.

5. The Secretary’s July 20, 2021 Motion for Further Sanctions is GRANTED in part and DENIED in part.

Respondents UHS of Fuller, Inc. (“UHS-Fuller”) and UHS of Delaware, Inc. (“UHS-DE”) are sanctioned for the destruction of video evidence as summarized in Decision Section II.B.3 (Summary of Spoilation Sanctions) above. Sadly, the destruction of evidence was not the only unfortunate conduct to mar these proceedings. UHS-DE also engaged in inappropriate dilatory tactics that hampered both the discovery process and the hearing. In two Motions, the Secretary sought additional sanctions solely against UHS-DE for failing to comply with discovery obligations and Orders.369 UHS-DE’s actions do not necessitate the imposition of additional adverse inferences. Still, the Secretary’s Sanctions Motions are granted, in part, including payment of the Secretary’s reasonable expenses, including attorneys’ fees, associated with the preparation and filing of certain documents, and an expedited transcription expense, because UHS-DE’s failure to abide by the undersigned’s Orders was not substantially justified.370

A brief recap of the past orders and motions is necessary.371 About a month and a half before the hearing commenced, the undersigned issued the June 14, 2021 Discovery Order Regarding the Secretary’s Cross-Motion to Compel (“Discovery Order I”) in response to cross-motions from the parties.372 It granted, in part, the Secretary’s May 13, 2021 Opposition to Respondents’ Motion for a Protective Order and Cross-Motion to Compel (“Motion to Compel”) and addressed Respondents’ May 7, 2021 Second Motion for Protective Order (“2d Protective Motion”).373 At the time, UHS-DE had yet to certify it had searched for responsive documents to the Secretary’s January 31, 2020, and March 6, 2020 Requests for Production.374 These discovery requests were relevant and proportional to the case needs. (Disc. Order I at 19-20.) UHS-DE also failed to produce a log with sufficient information regarding the documents withheld on purported privilege grounds. Id. at 24, 30. As a remedy, Discovery Order I directed UHS-DE to produce all improperly withheld documents by June 21, 2021. Id. at 31. Any document UHS-DE continued to withhold on privilege grounds needed to be logged appropriately, and the log had to be turned over by the same deadline, June 21, 2021. Id. at 31-32.

UHS-DE failed to comply with Discovery Order I. It produced hundreds of pages of responsive materials on three occasions after the deadline.375 These late productions account for over half of all documents produced by UHS-DE.376 Some of the documents related to the issues that Discovery Order I addressed. Nevertheless, UHS-DE does not claim that all the late produced documents were connected to claims Discovery Order I resolved. In addition, it continued to withhold documents improperly and failed to provide a sufficient privilege log. (Disc. Order II at 13, 15, 18-19.) These failings prompted the Secretary to request in camera review of a sample of the withheld documents on June 30, 2021.377 After review, the undersigned issued Discovery Order II, which found that UHS-DE improperly withheld nearly all the disputed documents, which documents should have produced in response to the Secretary’s long pending valid discovery requests.378

On July 12, 2021, the Secretary filed Sanctions Motion I for UHS-DE’s failure to comply with Discovery Order I, arguing UHS-DE’s actions hindered his ability to prepare for the hearing. (Sanctions Mot. I at 11-21.) Sanctions Motion I sought costs and other orders. Id. at 21-22. On July 15, 2021, the undersigned ordered Respondents to address why the relief sought in Sanctions Motion I should not be granted. (Show Cause Order 3.) UHS-DE and UHS-Fuller jointly filed a response to the Show Cause Order.379

On July 20, 2021, the Secretary filed Sanctions Motion II, which expanded on the relief sought in Sanctions Motion I. By that point, on July 15, 2021, Discovery Order II had issued and UHS-DE’s failure to comply with multiple aspects of Discovery Order I was evident.

In his post-hearing brief, the Secretary renewed his request for sanctions for UHS-DE’s conduct but narrowed the adverse inferences sought.380 He focused on obtaining this adverse inference: “UHS-DE’s discovery conduct constitutes credible evidence that UHS-DE operated Fuller Hospital as a single employer with UHS-Fuller.” (Sec’y Br. 46.) As discussed in Decision Section II.A, the undersigned found that the Secretary satisfied the requirements for finding a single employer relationship without this inference. Most of the other relief sought in the Sanctions Motions is no longer in issue. The primary request remaining is the Secretary’s request for the attorneys’ fees associated with the Sanctions Motions and the increased costs for transcribing the late-produced audio file regarding evidence preservation training.381

UHS-DE acknowledges “documents were untimely produced to the Secretary” and that its discovery conduct “necessitated the Court’s intervention.” (UHS-DE Br. 68-69.) Largely, it does not dispute the timeline or factual contentions set forth in the Sanctions Motions or Discovery Orders I and II. Nonetheless, it claims that the Secretary’s prejudice was minimal, and the delays did not hinder the Secretary’s ability to present his case. (UHS-DE Opp’n 1; UHS-DE Reply Br. 17.) UHS-DE also argues that it did not act “in bad faith” when withholding certain documents on privilege grounds. (UHS-DE Further Opp’n 14; UHS-DE Reply Br. 17.)

UHS-DE had months to prepare to produce all the required documents. (Sec’y Br. 44.) It failed to timely conduct a search for responsive documents. It waited until after Discovery Order I’s deadline to produce more than half of the total documents it produced in this litigation. Id. at 44, 47. The late production occurred close to the hearing, after the completion of depositions and the preparation of expert reports. Id. at 44. Accepting that reasonable privilege claims led to withholding some documents before Discovery Order I’s issuance, UHS-DE continued to withhold responsive, non-privileged documents after the deadline set in that order elapsed.382 This approach to discovery necessitated another motion by the Secretary to get UHS-DE to come close to complying. Id. In the Secretary’s view, UHS-DE’s actions during discovery were a purposeful attempt to avoid acknowledging the full extent to which it had access to documents concerning UHS-Fuller. Id. at 46-47. He argues that failing to impose sanctions incentivizes UHS-DE to “thwart its discovery obligations in all future OSHRC proceedings.” Id. at 47.

UHS-DE repeatedly claims that it delayed production because it was awaiting a ruling on the validity of privilege claims. (UHS-DE Br. 70; UHS-DE Reply Br. 15-16.) This argument ignores critical facts. First, it does not address UHS-DE’s failure to timely provide a compliant privilege log when it elected to withhold hundreds of documents. It was ordered to do so by March 5, 2021. It still had not provided a compliant log three months later. (2d Scheduling Order 2; Disc. Order I at 1-2.) Second, it does not explain why UHS-DE continued withholding documents without any rightful privilege claim. (Disc. Order I at 8, 18-20.) Third, it does not account for UHS-DE’s failure to meet the extended production deadlines ordered in the Second Scheduling Order and Discovery Order I. (2d Scheduling Order 2; Disc. Order I at 30-33.)

Under Commission Rule 52, the “initial” claim of privilege must “specify the privilege claimed and the general nature of the material for which the privilege is claimed.” 29 C.F.R. § 2200.52(d). In response to an order from the judge or in response to a motion to compel, the claimant of the privilege must: “identify the information that would be disclosed, set forth the privilege that is claimed, and allege the facts showing that the information is privileged.” Id. UHS-DE failed to comply with this rule.383 As Discovery Orders I and II explain, UHS-DE’s privilege log was “minimal” and “incomplete.” (Disc. Order I at 1-2; Disc. Order II at 5-7, 12, 15.)

UHS-DE points to the limited time for production after Discovery Order I’s issuance. (UHS-DE Opp’n 21, 24.) This argument fails to acknowledge the role the lack of an appropriate privilege log played in the compressed production time. The Second Scheduling Order directed UHS-DE to complete its privilege log by March 5, 2021. Yet, it waited until two months after that deadline to file a motion asserting what it inaccurately describes as “novel” privilege claims.384 The filing of the Second Protective Order Motion met the filing deadline for such motions but bringing the motion did not extend the time to provide a compliant privilege log. That obligation remained long overdue when UHS-DE brought its privilege claims. (2d Scheduling Order 2.) At that time, UHS-DE had only provided a document with broad categories of documents withheld rather than listing each document separately and providing the required information to assess its privilege claims. (Disc. Order I at 10, 24, 30.) This failure hindered the prompt resolution of the privilege claims forcing the undersigned to specifically order UHS-DE a second time to prepare and provide an appropriate privilege log.385 Although the log was months overdue, UHS-DE was granted even more time to provide the complaint privilege log. Once again, it failed to meet the ordered deadline.386

Hampered by UHS-DE’s continued failure to produce a compliant privilege log, the Secretary sought a review of a sample of the documents he believed UHS-DE was improperly withholding. (Disc. Order II at 5-6, 12-13.) As noted above, while the In Camera Request was pending, UHS-DE acknowledged that some of the documents were improperly withheld and belatedly produced them. Id. at 11, 13.

Conceivably some of the initial withholdings resulted from a legitimate confusion about the scope of various privileges. But UHS-DE also improperly withheld other responsive documents, claiming they were irrelevant. (Disc. Order I at 26-27.) These documents related to sexual allegations, boundary violations, elopement, and the corporate relationship between UHS-DE and UHS-Fuller. Id. at 29. Discovery Order I rejected the contention that the documents were irrelevant and directed UHS-DE to produce these withheld documents by June 21, 2021. Id. at 31. UHS-DE failed to comply, producing documents on multiple occasions after the deadline. (Sanctions Mot. I at 10.)

UHS-DE’s claims of time pressure are not persuasive. The Secretary served his First Set of Requests for Production of Documents on UHS-DE on January 31, 2020. A little over a month later, he served his Second Set of Requests for Production of Documents, First Set of Requests for Admission, and First Set of Interrogatories. UHS-DE received its first extension for production in March 2020. The parties then discussed a protective order, which the undersigned issued on June 25, 2020, over a year before the hearing commenced. The parties agreed to complete production by September 30, 2020. UHS-DE failed to meet that deadline, and the parties agreed to a series of extensions. UHS-DE promised to complete its search for responsive documents, produce responsive non-privileged material, and provide a privilege log by February 12, 2021.387

After the extended deadline for fact discovery closed, the parties participated in a status conference on June 3, 2021. At that point, UHS-DE still had not certified that it had completed a reasonable search for documents, had not produced all responsive documents, and had not produced a log that sufficiently explained the responsive materials being withheld and the rationale for the withholding. The undersigned explicitly ordered UHS-DE to produce responsive materials and log any responsive materials protected by valid privilege claims.389 Without an appropriate privilege log, there was no support for finding UHS-DE was withholding the documents appropriately. (Disc. Order I at 24.) Still, rather than rejecting all the privilege claims, the undersigned permitted UHS-DE an additional opportunity to rectify its failings. Id. at 30-33. Unfortunately, it failed to take full advantage of the opportunity, necessitating the In Camera Motion and Sanctions Motions.

In its Post-Hearing Brief, UHS-DE argues that the request for sanctions “finds no support in the law.” 390 On the contrary, under Commission Rule 52, if “a party fails to comply with an order compelling discovery,” the Judge may, in appropriate circumstances, issue “any sanction stated in Federal Rule of Civil Procedure 37.” 29 C.F.R. § 2200.52(f). Rule 37, in turn, provides that when a party fails to comply with discovery obligations or obey a court order, judges may require the payment of expenses or provide other relief. Rule 37(a)(5), (b)(2). Perhaps unsurprisingly given its assertions, UHS-DE appears not to address Rule 37 in its filings. (UHS-DE Opp’n 11-23; UHS-DE Further Opp’n 2; UHS-DE Br. 70-74; UHS-DE Reply Br. 14-16.) The remedies set out in Rule 37 have been available to Commission Judge’s since the agency’s earliest days. See e.g., Capital Dredge & Dock Co., 1 BNA OSHC 1066, 1068 (No. 803, 1972) (stating that Rule 37 “provide[s] sanctions for a failure to obey an order to permit or provide discovery”) (emphasis in original).

Appropriate sanctions are important to ensure compliance with pre-hearing procedures and the fair, efficient adjudication of cases. Duquesne Light Co., 8 BNA OSHC 1218, 1221 (No. 78-5034, 1980). The Commission reserves the most severe sanction of dismissal for those situations where the conduct of the noncomplying party constitutes contumacy or there is prejudice to the opposing party.391 When lesser sanctions for failure to comply with discovery obligations are at issue, the Commission follows Rule 37’s test of whether the conduct was “substantially justified.”392

UHS-DE contends that its failure to timely produce documents was because of a misunderstanding of the scope of privileges and that the Secretary failed to establish “prejudice” from the delay. (UHS-DE Br. 71-74.) These arguments miss the mark in two critical respects. First, what is at issue here is not UHS-DE’s decision to withhold documents before Discovery Order I’s issuance but its failure to comply with Discovery Order I.393 Second, for less harsh sanctions, like the award of expenses, a finding of prejudice is not required.394

As Discovery Order I made plain, UHS-DE improperly withheld many documents from production and needed to turn them over promptly. (Disc. Order I at 20, 24, 28-30.) Yet, UHS-DE continued to withhold them. Its explanation for not timely complying with Discovery Order I is the volume of materials involved. (UHS-DE Br. 71; UHS-DE Reply 16.) However, UHS-DE had many months to compile and log the responsive documents throughout the year before it filed the motion Discovery Order I addresses.395 UHS-DE is a large, sophisticated entity that challenged the Secretary’s discovery requests. Both internal and outside counsel have represented it throughout the process. The decision to wait for another order before starting to complete a compliant privilege log and compile responsive, non-privileged material was solely within its power.396

The Secretary established how UHS-DE’s pattern of behavior during discovery, particularly its failure to comply with the Second Scheduling Order and Discovery Order I, hindered his ability to present his case. UHS-DE produced responsive materials to Discovery Order I eighteen days before the hearing commenced, with additional materials provided ten days before the hearing began.397 The Secretary’s document requests were pending for over a year before UHS-DE served its first deficient privilege log. (Disc. Order I at 24; Disc. Order II at 5-7.) Even after Discover Order I and the Secretary’s Request for In Camera Review, UHS-DE still failed to give the required information for the responsive materials it was withholding. (Disc. Order II at 12-13, 15-16; Sanctions Mot. I at 8-9.) The late production precluded the Secretary’s counsel from being able to use the documents during depositions and having his expert review them before the extended deadline to issue his report.398 (Sanctions Mot. I at 10-21, Sanctions Mot. II at 2-4.) And the Secretary expended further resources to get UHS-DE to comply with its discovery obligations.399

UHS-DE’s conduct was “problematic for everyone” and hindered the Secretary’s ability to prepare for the case. (Tr. 25.) However, unlike the videos, UHS-DE did not destroy the evidence, and it complied with the orders before the hearing commenced. Thus, imposing the harshest of sanctions is unnecessary. See Jersey Steel Erectors, 16 BNA OSHC 1162, 1166 (No. 90-1307, 1993) (the “extreme sanction” of exclusion of evidence critical to a party’s case may be appropriate, but only where a party has willfully deceived the Commission or flagrantly disregarded a Commission order), aff’d without published opinion, 19 F.3d 643 (3d Cir. 1994).

Still, the Secretary is entitled to his attorneys’ fees associated with the Sanctions Motions and certain expenses necessitated by the very late production. Notably, UHS-DE does not address the Secretary’s entitlement to expenses in any of its filings related to the Sanctions Motions.400 Fees and expenses are not being awarded because UHS-DE asserted privilege claims. The award is necessary and appropriate because UHS-DE failed to timely comply with the discovery requirements after being ordered to do so. (2d Scheduling Order 2; Disc. Order I at 30-33.) UHS-DE’s failings include neglecting to properly log withheld documents and not timely turning over responsive documents after its privilege and relevancy contentions were rejected. It is undisputed that UHS-DE turned over many responsive, non-privileged documents after Discovery Order I’s deadline. (UHS-DE Br. 68; UHS-DE Opp’n 6, 21; Snare Decl. ¶ 10; Disc. Order II at 11, 13.) Indeed, UHS-DE produced hundreds of documents (compromising over 1,200 pages) and an audio file after the deadline without adequate justification for the late production. (Sanctions Mot. I at 10.)

UHS-DE’s failure to comply with Discovery Order I was not “substantially justified,” nor are there any “other circumstances” which would make the award of the expenses associated with bringing the Sanctions Motions “unjust.”401 In addition, because of the untimely production of the audio file, the Secretary is entitled to the increased costs associated with transcribing the file on an expedited basis.402 Ordering the payment of expenses associated with the Secretary’s Sanctions Motions, a section of the Secretary’s Request for In Camera Review, and sections of the Secretary’s post-hearing briefing, as stated below, and the increased transcription costs is sufficient to redress UHS-DE’s failure to comply with an order compelling discovery. 29 C.F.R. § 2200.52(f)(2).

The Secretary is entitled to the increased costs associated with transcribing the untimely produced audio file on an expedited basis. (Exs. S-435(A), S-451V.)

The Secretary is entitled to reasonable expenses, including attorneys’ fees, associated with the preparation and filing of Sanctions Motion I, including the proposed order and attached exhibits, and Sanctions Motion II.

The Secretary is entitled to reasonable expenses, including attorneys’ fees, associated with the preparation and filing of the section entitled “Additional Concerns,” in the Secretary's Request for In Camera Review.403

The Secretary is entitled to reasonable expenses, including attorneys’ fees, associated with the preparation and filing of the sections in the Secretary’s post-hearing brief and the Secretary’s reply brief to UHS-DE’s post hearing brief, regarding the Secretary’s requested sanctions for UHS’s discovery failures, which expenses and attorneys’ fees are separate from and in addition to the spoilation sanctions granted in the Decision Section II.B.3 (Summary of Spoilation Sanctions).

If the Secretary still wishes to pursue the reimbursement of the increased costs associated with transcribing the untimely produced audio file on an expedited basis and reasonable expenses, including attorneys’ fees, for the preparation and filing of the motions, request, and post-hearing briefing, as stated above, the Secretary shall file with the undersigned an accounting of those costs and expenses and present the same to UHS-DE within four calendar days of the service of this decision to the parties, on January 20, 2023. 29 C.F.R. § 2200.90(a)(b). He may include any relevant authority supporting the awarding of costs and expenses. UHS-DE, if it chooses, may, within four calendar days of receiving the Secretary’s accounting, file with the undersigned any objections to the accounting or the authority relied on for calculating such costs and expenses.

All other orders and adverse inferences sought in the Sanctions Motions are denied.

1 Ex. S-449, Stips. 1, 2, 6, 9, 25; Tr. 1365-66, 1405-6, 1605-6, 2514. In its brief, UHS-Fuller states that it does business as “Fuller Hospital,” and claims the parties reached a stipulation about this. (UHS-Fuller Br. 1, 11.) The language UHS-Fuller cites is not in Exhibit S-449, the document setting out the parties’ stipulations, or in stipulations set out in the briefs from UHS-DE and the Secretary. (Ex. S-449; UHS-Fuller Br. 11; Sec’y Br. 1-5; UHS-DE Br. 7-13.) The stipulations refer to “Fuller Hospital,” but that is not a defined term in Ex. S-449. Id. The undersigned relied on the stipulations as set forth in Exhibit S-449, as opposed to those in UHS-Fuller’s Brief. (Ex. S-449; Sec’y Br. 1-5; UHS-Fuller Br. 11-17.) This decision uses the term set out in Stipulation 1, “UHS-Fuller,” to refer to the corporate entity “UHS-Fuller, Inc.” and the term Worksite for the place where the inspection occurred, 200 May St., South Attleboro, MA. (Ex. S-449, Stip. 1.) Stipulation 1 states: “Respondent UHS of Fuller, Inc. (“UHS-Fuller”) is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 652(5).” Id. Similarly, the undersigned will refer to UHS of Delaware, Inc. as “UHS-DE,” consistent with Stipulation 2. (Ex. S-449, Stip. 2.) Stipulation 2 is: “Respondent UHS of Delaware, Inc. (“UHS-DE”) is an employer engaged in a business affecting commerce within the meaning of Section 3(5) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 652(5).” Id. Stipulation 6 is: “Fuller Hospital is located at 200 May St., South Attleboro, MA.” (Ex. S-449, Stip. 6.) Stipulation 9 is “Fuller Hospital is an in-patient psychiatric hospital.” (Ex. S-449, Stip. 9.) Stipulation 25 is: “Psychiatric patients come to Fuller Hospital for treatment/management of their psychiatric disorders.” (Ex. S-449, Stip. 25.)

2 “The Citation and Notification of Penalty underlying this proceeding was issued on December 11, 2019.” (Ex. S-449, Stip. 4.)

3 “UHS-Fuller and UHS-DE timely filed their Notices of Contest on December 20, 2019.” (Ex. S-449, Stip. 7.) In addition to the Citation contest, pre-hearing motions related to discover are pending. The undersigned reviewed the arguments made in the parties’ post-hearing briefs, the pending motions, and the oppositions and replies related to the pending motions, including those made in these filings: (1) Respondents’ July 16, 2021 Response in Opposition to Complainant’s Motion in Limine, (2) UHS-DE and UHS-Fuller’s July 20, 2021 Response to Order Show Cause (“Jt. Show Cause Resp.”), (3) UHS-Fuller’s July 21, 2021 Opposition to the Secretary’s Motion for Sanctions (“UHS-Fuller Opp’n”), (4) UHS-DE’s July 21, 2021 Opposition to the Secretary’s Motion for Sanctions and Response to the Order to Show Cause (“UHS-DE Opp’n”), (5) UHS-DE’s July 23, 2021 Opposition to Motion for Further Sanctions (“UHS-DE Further Opp’n”), and (6) Secretary’s July 21, 2021 Reply Regarding Respondents’ Response to Order to Show Cause (“Show Cause Reply”). (Exs. S-449, S-450, S-451, S-451A thru S-451AC, S-452, S-452A thru S-452E, S-456.)

4 After the parties submitted post-hearing briefs, the Commission issued UHS of Westwood Pembroke, Inc., UHS of De., No. 17-0737, 2022 WL 774272 (OSHRC, Mar. 3, 2022) appeal docketed, No. 22-1845 (3d Cir. May 2, 2022). The parties were ordered to submit statements of position regarding the impact, if any, of that decision on this matter. All parties complied with the order and submitted supplemental briefs. On May 2, 2022, UHS-DE and UHS of Westwood Pembroke, Inc. (“UHS-Pembroke”) appealed UHS Pembroke to the Third Circuit. Despite this appeal, the Commission’s decision is a Final Order and is followed as precedent. See e.g., Gulf & W. Food Prods. Co., 4 BNA OSHC 1436, 1439 (No. 6804, 1976) (consolidated) (“The orderly administration of [the OSH Act] requires that Commission’s administrative law judges follow precedents established by the Commission”); McDevitt St. Bovis, Inc., 19 BNA OSHC 1108, 1110 (No. 97-1918, 2000) (applying Commission precedent when pertinent circuit “neither decided nor directly addressed” issue).

5 This provision requires each employer to “furnish to each of his employees employment and places of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1).

6 When issued, the Citation characterized the violation as Repeat. (Tr. 8, 599.) During the hearing, the Secretary’s counsel withdrew the Repeat characterization. (Tr. 628.) The characterization was amended to Serious. (Tr. 628-29.) Initially, the Citation also alleged an other-than-serious violation of 29 C.F.R. § 1904.29(b)(1). The Secretary withdrew that allegation, and it is no longer before the Commission. (Sec’y May 20, 2020 Notice of Partial Withdrawal.)

7 “The hazard of workplace violence, defined in this case as physically violent or assaultive behavior of patients toward staff, was recognized by UHS-Fuller at the time of the alleged violation on June 12, 2019.” (Ex. S-449, Stip. 21.) Likewise, “the hazard of workplace violence, defined in this case as physically violent or assaultive behavior of patients toward staff, was recognized by UHS-DE at the time of OSHA Inspection 1408076.” (Ex. S-449, Stip. 22.)

8 Exs. S-26, S-27, S-55, S-60, S-68, RF-32 at 5, RF-33 at 7. There were 271 incidents of aggression from June 1 to September 30, 2019, according to a Loss Prevention Summary prepared by Gina Bricault, a UHS-DE Loss Control Manager. (Tr. 1244-47, 2769, Ex. S-61.) During the next three months of 2019, there were 245 physical confrontations and patients had to be restrained 344 times, according to the minutes from the Board of Advisor’s February 4, 2020 meeting. (Ex. S-26.) A different summary of aggression at the Worksite, also prepared by Ms. Bricault, indicates there were 627 incidents of aggression from June 1, 2019 through the end of the year. (Ex. S-68.) The parties stipulated: “UHS-DE Loss Control Manager Gina Bricault (formerly Gina Gilmore) conducts periodic meetings at Fuller Hospital and other UHS-DE managed behavioral health facilities to discuss employee injuries, including those resulting from workplace violence.” (Ex. S-449, Stip. 49.)

9 Ex. S-449, Stip. 24. The parties further stipulated that: “this was also true during the time of OSHA Inspection 1408076.” Id.

10 Tr. 234-35, 1175, 1208-9; Exs. S-1, S-1B, S-11, S-24, S-27, S-52, S-53, S-54, S-55, S-57 at 2; S-60 at 2, S-61 at 2-3; S-228, S-229, S-244, S-246, S-248, S-249, S-250, S-317, S-334, S-337, S-338, S-384, S-385, S-397. Most pages in Exhibit S-11 bear a label indicating that the document is Patient Safety Work Product (“PSWP”). (Ex. S-11.) However, no party objected to the document prior to the hearing as being privileged under the Patient Safety Quality Improvement Act 43 U.S.C. § 299b-21 et seq. or on any other grounds. (Tr. 1178-84; Protective Order I.) At the hearing, UHS-DE declined the offer to perform voir dire on the document and withdrew its objection on the grounds that the information qualified as PSWP. (Tr. 1183.) UHS-Fuller only objected to the extent that some names had not been redacted. Id. The Secretary agreed that those names should be redacted, and the document was admitted as redacted. (Tr. 1183-84; Ex. S-11.) Thus, as revised, Exhibit S-11 was admitted without objection.

11 Ex. S-449, Stips. 19, 20, 24; Exs. S-11, S-24, S-178, S-436 thru S-441. “Fuller Hospital employees at Fuller Hospital are exposed to the hazard of workplace violence, defined in this case as physically violent or assaultive behavior of patients toward staff. This was also true during the time of OSHA Inspection 1408076.” (Ex. S-499, Stip. 19.) Likewise, “UHS-DE employees at Fuller Hospital are exposed to the hazard of workplace violence, defined in this case as physically violent or assaultive behavior of patients toward staff. This was also true during the time of OSHA Inspection 1408076.” (Ex. S-449, Stip. 20.)

12 “There are times when police are called to Fuller Hospital to assist with assaultive patients. This was also true during the time of OSHA Inspection 140876.” (Ex. S-449, Stip. 27.) For instance, “Police were called to respond to an incident on the adolescent unit at Fuller Hospital on July 18, 2019.” (Ex. S-449, Stip. 28. See also Ex. S-24, Tr. 1066.)

13 Section II.B. resolves the Motion in Limine. The Appendix Decision addresses the Secretary’s July 12, 2021 Motion for Sanctions (“Sanctions Motion I”) and the Secretary’s July 20, 2021 Motion for Further Sanctions (“Sanctions Motion II,” and collectively with Sanctions Motion I, “Sanctions Motions”).

14 Ex. S-449, Stips. 1-2, 5, 34-36. “5. UHS-Fuller is a Massachusetts corporation. … 34. UHS-DE is a Delaware corporation. 35. UHS-DE has its corporate office in King of Prussia, Pennsylvania. 36. The business address for UHS-DE is 367 S Gulph Rd., King of Prussia, PA, 19406.” (Ex. S-449, Stips. 5, 34-36.) UHS-DE misquotes Stipulation 5 in its brief. (UHS-DE Br. 8.) This decision relies on the stipulations set out in Exhibit S-449.

15 Ex. S-449, Stips. 1-3. “The Occupational Safety and Health Review Commission has jurisdiction in this proceeding pursuant to § 10(c) of the Occupational Safety and Health Act … .” (Ex. S-449, Stip. 3.) Despite stipulating to their roles as employers within the meaning of the OSH Act and to the Commission’s jurisdiction over this matter, Respondents still challenge OSHA’s authority over them. (Stips. 1-3.) Those arguments lack merit and are discussed below in Section II.C. (Role of the Massachusetts Department of Mental Health and Other Regulators Does Not Deprive OSHA of Jurisdiction).

16 Ex. S-449, Stips. 34, 37-39; Tr. 1483-84, 1537, 1648-49. “UHS-DE describes itself as a management company, which provides administrative, management, information, and other services to behavioral health entities, including Fuller Hospital.” (Ex. S-449, Stip. 37.) “Fuller Hospital and UHS-DE each have their own articles of incorporation and bylaws.” (Ex. S-449, Stip. 38.) “UHS-DE is a separate corporate entity from Fuller Hospital.” (Ex. S-449, Stip. 39.)

17 Tr. 1537. Herein, the property located at 200 May St., South Attleboro, MA 02703, is referred to as the Worksite, and the company which employs most of the workers at that location is referred to as UHS-Fuller. (Stips. 1, 5-6.)

18 Stips. 8-10; Tr. 536, 2371, 2429; Exs. S-24, S-452B. “8. Fuller Hospital is a healthcare provider licensed by the state of Massachusetts. … 10. Fuller Hospital has 6 units with a total of 102 patient beds.” (Ex. S-449, Stips. 8, 10.) In addition to the in-patient facility, there is also a partial hospitalization program (“PHP”) for individuals that do not need to stay overnight. (Tr. 2514.)

19 Tr. 2291-94. The Medical Director, Dr. Scott Haltzman, clarified that patients frequently “come in wanting to be admitted” but transportation companies will not pay for them to be transported and “often hospitals won’t accept them” unless they come through the involuntary commitment process. (Tr. 2293.)

20 “Fuller Hospital’s Chief Executive Officer (CEO) and UHS-DE Group Director, Rachel Legend, is employed by UHS-DE.” (Ex. S-449, Stip. 40.)

22 UHS-Fuller “agrees with” UHS-DE’s arguments on single employer set out in UHS-DE’s post-hearing brief,” which was filed on the same day UHS-Fuller filed its brief. (UHS-Fuller Br. 104.) It does not raise any specific arguments related to the issue of single employer. Id.

23 See C.T. Taylor, 20 BNA OSHC at 1086-88. UHS-DE correctly notes that in C.T. Taylor the employers sought to be treated as one entity. (UHS-DE Suppl Br. 5 n.1.) There is no rationale for finding that the assessment should vary depending on the party seeking to establish that two entities should be jointly responsible for a violation of the OSH Act. The Commission applies the same test either way.

24 UHS-DE Suppl Br. 6. UHS-DE cites Marzano v. Computer Sci. Corp. Inc, 91 F.3d 497 (3d Cir. 1996), a case arising under New Jersey state laws. Applying New Jersey corporate law, the Third Circuit concluded that only the entity that employed the plaintiff was appropriately named to the action, which raised employment discrimination claims under two New Jersey state laws. 91 F.3d at 502, 511, 513-14. In contrast, when the Third Circuit considered whether two legally distinct entities constituted a single employer in connection with an alleged violation of the federal OSH Act, it applied a different test and upheld the Commission’s finding. Altor, Inc. v. Sec’y of Labor, 498 F. App’x 145, 148 (3d Cir. 2012) (looking at the same three factor test the Commission applied along with the fourth factor of “centralized control of labor relations” before concluding the two entities were a single employer). Like the Third Circuit, the Commission, and the First Circuit do not apply the common law veil piercing test to assess whether separate corporate entities constitute a single employer under the OSH Act. UHS Pembroke, 2022 WL 774272, at *2; A.C. Castle v. Acosta, 882 F.3d 34, 41-42 (1st Cir. 2018). Accord Loretto-Oswego Residential Health Care Facility, 23 BNA OSHC 1356, 1358 n.4 (No. 02-1164, 2011), aff’d, 692 F.3d 65 (2d Cir. 2012). UHS-DE is headquartered in Pennsylvania and the Worksite is in Massachusetts, giving the First, Third and D.C. Circuits potential jurisdiction over an appeal of this matter. (Stips. 5, 6, 35, 36.) See 29 U.S.C. § 660(a). Generally, Commission judges apply the law of the circuit where it is probable a case will be appealed. See, e.g., Kerns Bros. Tree Serv., 18 BNA OSHC 2064, 2067 (No. 96-1719, 2000).

25 Stips. 5-6, 35-36; Exs. RD-1, RD-2, RD-3. UHS-DE Senior Vice President Gary Gilberti indicated that some training occurred at the King of Prussia, Pennsylvania offices. (Tr. 1421; Exs. S-80, S-81.) Not everyone who participated in such training was employed by UHS-DE. (Tr. 1415.)

26 A.C. Castle, 882 F.3d at 42; UHS Pembroke, 2022 WL 774272, at *3 (finding that although UHS-DE operates out of Pennsylvania and the hospital facilities were in Massachusetts, this did not mean there was no common worksite). Like in UHS Pembroke, the First Circuit is a relevant Circuit for this matter. 29 U.S.C. § 660(a); 2022 WL 774272, at *1, 3. A.C. Castle found that for there to be a common worksite, workers from each entity do not have to “be at the site at the time violation occurred or directly exposed to the risk.” 882 F.3d at 42. UHS-DE tries to distinguish A.C. Castle, arguing that despite this language, when read as a whole, the decision held that workers from both entities must be exposed to the hazard at some point. (UHS-DE Suppl. Br. 4-5.) This potential distinction does not affect the analysis of the common worksite factor in this matter. Employees from both entities were routinely present at the Worksite, including when incidents of the workplace violence hazard occurred. UHS-DE employees discussed responding to violent situations at the Worksite and UHS-DE stipulated its employees were exposed to the cited hazard. (Stip. 20.)

27 Tr. 2510. Ms. Legend was often evasive in her testimony. For example, she could not provide basic information about her direct supervisor. (Tr. 2704-5.) Even though they regularly spoke by phone, sometimes as frequently as twice a week, she claimed not to know his title, where his office was, or what time zone he was in. (Tr. 2704-6.) She also denied that she reported to UHS-DE Senior Vice President, Mr. Gilberti. (Tr. 2705.) However, Mr. Gilberti testified that he supervised her, explaining that she regularly reported “key metrics” and other information to him, including details about safety at the Worksite. (Tr. 1394, 1396-97.) Mr. Gilberti’s testimony is credited.

28 Tr. 2345, 2510, 2705. Ms. Legend is in the patient care units at the Worksite “several times a week” and “sometimes every single day.” (Tr. 2728.) Ms. Legend has responsibilities for another UHS-DE affiliate, UHS-Pembroke. (Tr. 2706, 2708.) She remains in touch with employees at the Worksite even when she is at UHS-Pembroke. Id. Like in Advance Specialty Co., Inc., 3 BNA OSHC 2072 (No. 2279, 1976), there were no “physical barriers” restricting where the UHS-DE employees worked while at the Worksite. 3 BNA OSHC at 2074. See also Vergona Crane, 15 BNA OSHC 1782, 1783 (No. 88-1745, 1992) (shared office space). In Advance Specialty, two Commissioners concurred in the result, but one would not have reached the single employer issue and one would have vacated the citation. 3 BNA OSHC at 2076.

29 Tr. 1488-89, 1599, 1637, 2710; Ex. S-120. The DON at a facility like the Worksite must have a master’s degree to meet the Centers for Medicare and Medicaid Service’s (“CMS’s”) criteria for participation in its reimbursement program. (Tr. 1489, 1615, 2710; Ex. S-449, Stip. 14.) Frequently, in the relevant timeframe, the person in the role of DON or Assistant Director of Nursing (“ADON”) did not meet this requirement and so a UHS-DE employee with the appropriate credentials had to supervise them. (Tr. 1405, 1488-89, 1616-17, 1710, 2579, 2710; Ex. S-120.) Stipulation 14 is: “Fuller Hospital is certified as a Medicare and Medicaid hospital by the federal Centers for Medicare and Medicaid Services (“CMS”).” (Ex. S-449, Stip. 14.) Maintaining CMS certification was very important to the Worksite’s financial health. (Tr. 2189.)

30 In UHS-Pembroke, the Commission distinguished UHS-DE and UHS-Pembroke’s relationship from the facts of Loretto and found a common worksite. 2022 WL 774272, at *3, 5-6. See also C.T. Taylor, 20 BNA OSHC at 1085 (finding single-employer relationship where one entity’s employee directed and supervised the work performed by the other entity’s employees). UHS-DE cites Absolute Roofing & Constr., Inc., 24 BNA OSHC 1885 (No. 11-2919, 2013) (ALJ). (UHS-DE Br. 28, 30, 39, 44, 46, 49.) Absolute Roofing applied the same three-part test discussed herein and found that two entities should be treated as a single employer. 24 BNA OSHC at 1892. The Commission did not review Absolute Roofing, but the ALJ’s decision was upheld when the employer appealed it to the Sixth Circuit. Absolute Roofing & Constr. Inc. v. Sec’y of Labor, 580 F. App’x 357 (6th Cir. 2014) (unpublished).

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 20-0032
UHS OF FULLER, INC., UHS OF DELAWARE, INC.,
Respondent.

SECRETARY OF LABOR,
Complainant,
v.	OSHRC DOCKET NO. 20-0032
UHS OF FULLER, INC., UHS OF DELAWARE, INC.,
Respondent.