The Use of Workplace Violence Restraining Orders in Response to Abusive Residents and Family Members
Health Law Alert 08/30/16 Randall R. Fearnow
One of the most difficult problems faced on a regular basis by SNFs and Assisted Living Facilities is that of dealing with the resident or family member who abuses, threatens, intimidates, or bullies facility staff. Reports received over the years test the bounds of imagination. It is hard to believe that human beings, particularly family members of residents, can act with such disdain and hostility toward caregivers who are doing their best to maintain a peaceful environment for their residents. Dark psychological forces are clearly at work to cause this type of behavior. Only a few family members push the bounds of civility and decency to the breaking point but those few ruin the experience for many. Hard working and caring employees are expected to put up with a lot of bad behavior in the name of customer service, but when that behavior graduates to the level of credible threats of violence, the facility must act to protect its employees.
Facilities have historically had limited options for handling abusive residents and family members. Ombudsmen and Adult Protective Services officials rarely take action to alleviate these problems and most often side with the abusive resident or family under some distorted concept of resident rights regardless of how extreme the conduct has become. Residential and SNF resident rights regulations provide for the involuntary transfer of residents whose needs the facility cannot meet or who endanger staff or other residents. In practice though, facilities have a difficult time meeting one of the prerequisites for involuntary transfer, that being the requirement to provide a suitable alternative placement through the care planning process, because word gets around and no competing facility wants to subject its staff to the problem the current facility is attempting to export. One would think that family members so violently disposed toward a facility's management would be glad to move their loved one someplace else, but most times the opposite is true and the abusive family will resist all reasonable efforts to transfer the resident.
In many cases, once all efforts to transfer the resident have failed, the facility is left with little choice but to do the best it can to accommodate the problem family even if it means the loss of valuable staff. There are other cases though in which the facility may have a remedy from an unlikely source, the laws established to protect Indiana employees from workplace violence.
Indiana Code 34-29-6-6 allows an employer to seek an injunction barring a person from the employer's premises when an employee has been subjected to unlawful violence or a credible threat of violence. On August 24, 2016, the Indiana Court of Appeals, in a unanimous decision, approved the use of workplace violence restraining orders in nursing facilities. The court concluded that the trial court was correct in ruling that abusive conduct engaged in by the son of a resident in a residential facility warranted issuance of a workplace violence restraining order barring the son from the facility. During the course of the litigation, the son did finally transfer his mother elsewhere but the restraining order remains in effect prohibiting the son from entering the facility or harassing its employees.
The case was argued successfully at trial and on appeal by Quarles & Brady associate Jacob V. Bradley, who practices in the firm's Indianapolis office. On or about September 24, 2016, barring further appeal by the attorney representing the abusive son, the case will become a final decision of the court and precedent for other courts hearing similar matters. We will continue to follow the development of the law in this area and will encourage our clients to consider recourse to the workplace violence law when confronted with extreme conduct in the nursing facility workplace.
For questions, please contact Randall R. Fearnow at [email protected]/(312) 715-5194, or your local Quarles & Brady attorney.