The Denver-based federal appeals court agreed earlier this month that the government properly cited and penalized a Colorado Springs psychiatric hospital for failing to protect its staff from known risks posed by patients.

The Occupational Safety and Health Administration inspected Cedar Springs Hospital in 2019. OSHA then issued a citation alleging that Cedar Springs violated the federal law requiring employers to maintain workplaces “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees.

Subsequently, an administrative law judge found there were multiple, feasible mitigation measures that Cedar Springs could implement to address the numerous instances of patient-on-staff violence. He imposed a $13,494 penalty, plus an additional $1,928 for Cedar Springs’ record-keeping violations.

The hospital appealed to the U.S. Court of Appeals for the 10th Circuit, but a three-judge panel upheld the administrative judge’s decision in full.

The administrative judge “could reasonably find effective methods to enhance security through the addition of security guards, reconfiguration of the nurses’ stations, and purchase of more communication devices,” wrote Judge Robert E. Bacharach in the Feb. 13 opinion.

Cedar Springs, which has the capacity to treat up to 110 people across multiple buildings, largely houses patients who are admitted involuntarily. OSHA cited the hospital in 2020, indicating seven steps Cedar Springs could take to reduce the likelihood of workplace violence:

• Reconfigure the nurses’ stations to be more secure
• Provide staff with communication devices and other means of summoning assistance
• Implement Cedar Springs’ violence prevention plan
• Maintain adequate staffing
• Improve its contraband inspection policy
• Hire security staff
• Investigate and debrief after each instance of workplace violence

Administrative Law Judge Christopher D. Helms held a multi-day hearing in February 2022, when he considered evidence and expert witness testimony. Among other things, Helms heard about rampant violence against Cedar Springs employees by patients who punched, choked, and “bashed” them.

“Managers witnessed, experienced, and had violent incidents reported directly to them. Management also received reports of injuries from workplace violence or reviewed video of such incidents after they occurred,” Helms wrote in a 157-page decision. “While predicting which patient would act violently was difficult, the unpredictability necessitated more, not less, effort to implement engineering controls, assess risk, and have adequate staffing.”

Helms found that the government had shown the suggested corrective measures would not preclude Cedar Springs’ “economic viability.” Further, he penalized Cedar Springs for failing to preserve videos and turn over records, despite its clear obligation to do so after the investigation started.

Turning to the 10th Circuit, Cedar Springs challenged several aspects of the process, including the U.S. Department of Labor’s authority to enforce workplace safety violations, the clarity of the citation, and the feasibility of the corrective measures.

“There is a serious fair notice problem about what it is we’re supposed to do to comply,” attorney Dion Y. Kohler told the appellate panel during oral arguments in September.

“Are you overstating it a little bit? Because it’s pretty simple at its bottom,” said Judge Gregory A. Phillips. “You have X number of patient-on-staff violence. Jumping over nursing station guardrails, whatever else. The problem is identifiable and observed. And so, when you were given these abatement consideration factors and told, ‘They’re not exclusive. You can also use your own judgment to solve this problem, so long as you resolve the problem and materially reduce the hazard,’ do you really fear some sort of liability? Everyone’s happy if you solve the problem, aren’t they?”

“It’s a problem that can’t be eliminated,” responded Kohler. “What’s an acceptable level of workplace violence? No one knows the answer.”

“We know what’s unacceptable,” interjected Phillips. “That’s the number that was found in this case.”

Bacharach pressed the government about the feasibility of various corrective measures.

“Let’s say that providing one security staff will reduce their profits by about 25%,” he said. “If they reconfigure all of the nurses’ stations, then that would reduce their profits by, say, 35%. And now you’ve got a reduction of 60%. And we provide a silent alarm to all of the mental specialists, and that reduces their profit margin by, let’s say, 35%. Now it’s 95%.”

He added: “How in the world did that satisfy feasibility if that is what they are obligated to do?”

The Labor Department’s “obligation is to show there is at least one thing that would have been feasible and effective for them to do that would have materially reduced the hazard,” responded attorney Leigh Anne Schriever.

Ultimately, the panel upheld the administrative judge’s order finding the existence of concrete steps Cedar Springs could take to reduce workplace violence.

“In addition, expert witnesses supported the feasibility of these abatements by pointing to the measures that Cedar Springs had taken after the citation,” wrote Bacharach. “With this evidence, the (government) could prove feasibility without pinpointing the exact cost.”

The case is Cedar Springs Hospital, Inc. v. Occupational Health and Safety Review Commission et al.