Avoiding ‘higher Volume,’ ‘more Extreme’ Home Care Workplace Safety Issues

Workforce safety concerns in the home care industry are ramping up in frequency and severity, according to a legal expert.

To avoid creating liability, providers can take actionable steps to protect their employees and their organizations, including by developing and enforcing an up-to-date workplace violence prevention plan, conducting home safety assessments and considering running criminal background checks on clients.

“We are getting calls like I’ve never seen before over the last couple of years here related to workplace safety, [it is] just different than it used to be, [with] and more extreme issues and a higher volume of issues,” Angelo Spinola, home health, home care and hospice chair at Polsinelli law firm, said on a webinar on Thursday. “It’s not all within your control, but a lot of it is.”

Workplace violence is a well-documented issue in the home-based care industry. Research has found that over 50% of caregivers have experienced or witnessed at least one incident of workplace violence or harassment, and that only 48% said that they felt that they could leave an unsafe environment without fear of retaliation from their employer. 

Home-based care providers are frequently held liable of negligence if they fail to protect their workers, Spinola said, but face specific challenges when doing so, making it difficult to demonstrate that a company did not, in fact, put profits over safety.

For example, recommendations may suggest that employees work in pairs, but that is not generally possible in home-based care, according to Spinola. Instead, providers “have to adapt your program to the industry.”

Home Health Care News sources have shared similar sentiments in the past.

“I do not believe that any organization intentionally fails to protect its employees from workplace violence,” Nicole McCann-Davis, Transcend Strategy Group’s senior client advisor and research director, previously told Home Health Care News. “Often, resource limitations or the difficulty of balancing competing priorities can pose challenges. While many organizations actively invest time and resources into violence prevention, more work remains until all participants consistently report feeling fully supported by their organization.”

The primary type of legal risk for home care companies to consider, Spinola said, is negligence regarding protecting caregivers and clients and vetting caregivers and clients.

Home-based care agencies must prioritize caregivers’ safety, even above client satisfaction, Spinola said. With rampant workforce shortages, providers often face higher demands for care than they have supply, making caregivers a home care organization’s primary asset.

Avoiding legal risk and protecting caregivers and clients

While not all contributing factors to workplace safety are within a home care organization’s power to control, several of them are, Spinola said.

Some states require workplace safety prevention programs, but Spinola “implored” all providers to have such a program in place.

“It’s not necessarily dictated by the law,” he said. “You want to be thinking about that negligence standard and what it is that you can do to protect your agency and protect your caregivers.”

This plan must be written and include identification for who is responsible for implementing the plan, procedures for evaluating and identifying violent hazards and procedures for responding to reports of workplace violence.

Simply having a safety prevention program in place is not enough, however. Spinola advised that providers conduct annual training and perform periodic reviews of these plans.

Home care companies must also actively look for potential safety issues, and workplace safety prevention programs should include an initial home safety assessment. These must be conducted periodically, not only once, Spinola said.

“If we identify unsafe conditions, … we’ve got to act on that,” Spinola said. “Those things have got to be dealt with, because if we find that we identify a safety issue in our assessment, and then that safety issue wasn’t addressed, again, that’s a good argument around negligence.”

Another option to prevent workplace violence, Spinola said, is to conduct criminal background checks. While most states require some form of background checks for caregivers, providers should consider having background checks for clients and having an involuntary patient discharge policy, driven by state law.

“We want to disclose, and there are going to be requirements in order to be able to do that, but [we want to] disclose information to caregivers that might be put in that situation and obtain their consent and their understanding,” Spinola said.

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