SENATE DOCKET, NO. 748        FILED ON: 1/18/2023

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1472

The Commonwealth of Massachusetts

_________________

PRESENTED BY:

Walter F. Timilty

_________________

To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:

The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:

An Act providing safeguards for home healthcare workers.

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PETITION OF:

SENATE DOCKET, NO. 748        FILED ON: 1/18/2023

SENATE  .  .  .  .  .  .  .  .  .  .  .  .  .  .  No. 1472

The Commonwealth of Massachusetts

_______________

In the One Hundred and Ninety-Third General Court
(2023-2024)

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An Act providing safeguards for home healthcare workers.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same, as follows:
 

SECTION 1. Chapter 111 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by adding the following section:-

Section 243: (a) As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:-

“Home healthcare employer”, any agency or organization employing home healthcare workers.

“Home healthcare worker”, an individual who provides healthcare services in the home, including but not limited to, nurses, physical therapists, and occupational therapists.

“Workplace Violence”, conduct at the work site that is: (i) an unpermitted or harmful touching of another person; (ii) an attempt or act to use some degree of physical force on another person; or (iii) engaging in conduct that could be reasonably perceived as an intent to touch without permission, use immediate physical force or injure a particular person now or in the future, that if carried out would constitute a crime, and causes another person to reasonably believe that the person has the intent and ability to carry out such conduct. 

(b) Home healthcare employers shall provide annual comprehensive workplace safety training to all home healthcare workers. Employee training shall include methods of reporting to appropriate public safety officials, bodies or agencies and processes necessary for the filing of criminal charges.

(c) each healthcare employer shall develop and implement a program to minimize the danger of workplace violence to home healthcare workers, which shall include appropriate employee training, communication plans to ensure healthcare worker safety and a system for the ongoing reporting and monitoring of incidents and situations involving violence or the risk of violence.

(d) prior to the provision of services by a home healthcare worker, a home healthcare employer shall conduct a safety assessment of any setting in which home healthcare services are to be provided. This assessment shall include, but not be limited to (i) the patient’s current psychiatric, psychological, cognitive, and emotional status, (ii) any patient history of violent behavior, (iii) any patient history of substance use disorder, (iv) the presence or anticipated presence of any other individual or individuals and any history of violent behavior associated with said individual or individuals, and (v) the presence of any weapons and how they are secured.

(e) the safety assessment shall be used to develop or modify the delivery of home healthcare services to meet both patient needs and home healthcare worker safety.

(f) home healthcare employers shall provide home healthcare workers with cellular phones or other two-way communication devices and hand-held alarms or noise devices for use during home healthcare visits.

(f) Home healthcare workers shall be permitted to refuse to provide services in any situation where the home healthcare worker has (i) where possible, requested a home healthcare employer to eliminate the danger previously and (ii) genuinely believes an imminent danger exists. Home healthcare workers shall not face a loss of compensation nor disciplinary action for refusing services if these conditions are met.

(g) Each home healthcare employer shall designate a senior manager responsible for the development and support of an in-house crisis response team for home healthcare worker victims of workplace violence. Said team shall implement an assaulted staff action program that includes, but is not limited to, group crisis interventions, individual crisis counseling, staff victims’ support groups, home healthcare worker victims’ family crisis intervention, peer help and professional referrals.

(h) Any home healthcare employer who violates any rule, regulation or requirement made by the department under authority hereof shall be punished by a fine of not more than $2,000 for each violation. The department or its representative or any aggrieved employee, any interested party or any officer of any labor union or association, whether incorporated or otherwise, may file a written complaint with the district court in the jurisdiction of which the violation occurs and shall promptly notify the attorney general in writing of such complaint. The attorney general, upon determination that there is a violation of any workplace standard relative to the protection of the occupational health and safety of employees or of any standard of requirement of licensure, may order any work site to be closed by way of the issuance of a cease and desist order enforceable in the appropriate courts of the Commonwealth.

(i)  No home healthcare worker shall be penalized by a home healthcare employer in any way as a result of such worker’s filing of a complaint or otherwise providing notice to the department in regard to the occupational health and safety of such home healthcare worker or their fellow home healthcare workers exposed to workplace violence risk factors.

(j) Not less than every 180 days, each home healthcare employer shall submit a report, on a form prescribed by the commissioner of the department, of all incidents of workplace violence reported to the home healthcare employer that involved a home healthcare worker. The report shall be submitted to the department and the office of the district attorney for the county where the incident occurred . Not more than 90 days after receiving the reports, the department shall make the aggregate data statewide and by county publicly available; provided that the department categorize the aggregate data by occupation and incident type.

SECTION 2. Chapter 149 of the General Laws is hereby amended by inserting after section 52E the following section:-

(a)Section 52F. (As used in this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:-

“Home healthcare employer” any agency or organization employing home healthcare workers.

“Home healthcare worker” an individual who provides healthcare services in the home, including but not limited to, nurses, physical therapists, and occupational therapists.

(b) A home healthcare employer shall permit home healthcare workers to take up to 7 days of leave from work in any 12 month period if: (i) the home healthcare worker is a victim of an assault or assault and battery which occurred in the line of duty and (ii) the home healthcare worker uses the leave to seek or obtain victim services or legal assistance; obtain a protective order from a court; appear in court or before a grand jury; meet with a district attorney or other law enforcement official; or to address other legal issues directly related to the assault or assault and battery.

(c) The leave taken pursuant to subsection (b) shall be paid.

(d) A home healthcare employer may require a home healthcare worker to provide documentation evidencing that the home healthcare worker is a victim of assault or assault and battery sustained in the line of duty and that the leave taken is consistent with the conditions of subsection (b). A home healthcare worker shall provide such documentation to the home healthcare employer within 5 business days after the home healthcare employer requests documentation relative to the home healthcare worker’s absence.

(e) A home healthcare worker seeking leave from work pursuant to subsection (b) shall provide advance notice of the leave to the home healthcare employer in accordance with the employer's leave policy; provided, however, that if a home healthcare worker is absent on an unauthorized basis, the home healthcare employer shall not take any negative action against the home healthcare worker if the home healthcare worker, within 30 days from the unauthorized absence or within 30 days from the last unauthorized absence in the instance of consecutive days of unauthorized absences, provides documentation that the unauthorized absence meets the criteria of subsection (b).

(f) All information related to the home healthcare worker’s leave taken pursuant to this section shall be kept confidential by the home healthcare employer and shall not be disclosed, except to the extent that disclosure is: (i) requested or consented to, in writing, by the home healthcare worker; (ii) ordered to be released by a court of competent jurisdiction; (iii) required by federal or state law; (iv) required in the course of an investigation authorized by law enforcement, including, but not limited to, an investigation by the attorney general; or (v) necessary to protect the safety of the home healthcare worker or others employed at the workplace.

(g) No home healthcare employer shall require a home healthcare worker to exhaust all annual leave, vacation leave, personal leave or sick leave available to the home healthcare worker prior to requesting or taking leave under this section.

(h) No home healthcare employer shall coerce, interfere with, restrain or deny the exercise of, or any attempt to exercise, any rights provided by this section or to make leave requested or taken hereunder contingent upon whether or not the victim maintains contact with the alleged abuser.

(i) No home healthcare employer shall discharge or in any other manner discriminate against a home healthcare worker for exercising the home healthcare worker’s rights under this section. A home healthcare worker who takes leave under this section shall not lose any employment benefit accrued prior to the date on which the leave taken under this section commenced as a result of taking said leave. Upon the home healthcare worker’s return from said leave, the home healthcare worker shall be entitled to restoration to the home healthcare worker’s original job or to an equivalent position.

(j) Each home healthcare employer shall post in a conspicuous place accessible by home healthcare workers a notice prepared or approved by the department indicating the rights and responsibilities provided by this section. The notice shall be issued in English, Spanish, Chinese, Haitian Creole, Italian, Portuguese, Vietnamese, Laotian, Khmer, Russian and any other language that is the primary language of at least 10,000 or ½ of one percent of all residents of the Commonwealth. The required workplace notice shall be in English and each language other than English which is the primary language of 5 or more home healthcare workers or self-employed individuals of that workplace, if such notice is available from the department. Each home healthcare employer shall notify each home healthcare worker not more than 30 days from the beginning date of the home healthcare worker’s employment, the rights and responsibilities provided by this section, including those related to notification requirements and confidentiality.

(k) This section shall not be construed to exempt an employer from complying with chapter 258B, section 14B of chapter 268 or any other general or special law or to limit the rights of any home healthcare worker under said chapter 258B, said section 14B of chapter 268 or any other general or special law.

SECTION 3. Section 13I of chapter 265 of the General Laws, as appearing in the 2020 Official Edition, is hereby amended by adding the following paragraph:-

Any home healthcare worker who is the victim of assault or assault and battery in the line of duty shall be given the option of providing the address of the home healthcare employer or of the labor organization in which they are a member in good standing. In instances where the address of the home healthcare employer is used or labor organization to which the home healthcare worker is a member in good standing, the home healthcare employer or labor organization shall ensure that the individual receives any documents pertaining to the assault or assault and battery within 24 hours of receipt by the home healthcare employer or labor organization. The home healthcare employer or labor organization shall demonstrate that it has provided any and all documentation by obtaining a signature from the individual acknowledging receipt.