OSHA and Workplace Violence
The shooting earlier in the year in Florida, where a lone gunman killed five people and then himself at an Orlando awning factory, and the recent tragedy in Maryland, where an employee of a granite company shot five people, three of them fatally, are sad reminders that workplace violence remains a serious issue for businesses.
OSHA estimates that approximately 2 million American workers are victims of workplace violence each year and that it can strike anywhere, at any time. Although there are no specific OSHA standards for workplace violence, ignoring signs and failing to abate recognized hazards including workplace violence could lead to a violation of Section 5(a)(1), the general duty clause, of the Occupational Safety and Health Act. Specifically, an employer that has experienced acts of workplace violence or becomes aware of threats or other indicators showing the potential for workplace violence would be on notice for risk of workplace violence and should implement a workplace violence prevention program including engineering controls, administrative controls, and training, as it generally should for any other kind of recognized hazard in the workplace. Indeed, some states such as New York already require certain employers to have a written workplace violence program including conducting a hazard assessment.
In many of these tragedies, there may have been visible workplace violence signs or other indicators. Indeed, police have said that the gunman in Maryland had a prior history of workplace violence.
OSHA has issued a Fact Sheet on Workplace Violence that serves as a helpful guide in preparing and implementing a workplace violence policy which is available at: https://www.osha.gov/OshDoc/data_General_Facts/factsheet-workplace-violence.pdf.
Not surprisingly, OSHA recommends that employers adopt a zero-tolerance workplace violence program that should be incorporated into an employee handbook or manual of standard operating procedures or similar document. Proactive suggestions include:
- Providing safety education for employees
- Securing the workplace, when appropriate, with video surveillance, extra lighting, and alarm systems, etc.
- Providing drop safes to limit cash on hand
- Equipping field staff with cell phones and other communication devices
- Instructing employees not to enter any locations where they feel unsafe or to use a "buddy" system
In addition, OSHA has developed other more specific workplace violence guidelines for high-risk industries such as health care, taxi drivers, and late-night retail establishments. Of course, OSHA is not the only legal issue employers need to be aware of when dealing with workplace violence. For example, the Americans with Disabilities Act may need to be considered; it generally protects individuals with disabilities or perceived disabilities (both physical and mental), and some states, like New York, protect domestic violence victims against employment discrimination.
An effective workplace violence program should address how employees can protect themselves and what employers should do following an incident of workplace violence. Like any other safety and health policy, the specific operational facts will dictate what is necessary. By conducting an appropriate workplace violence assessment, an employer will be in a much better position to determine what protocols it should have in place and to provide training for such as an active shooter scenario. In addressing workplace violence, the cliché "hope for the best and prepare for the worst" is ultimately the best strategy.
John S. Ho, chair of the law firm Cozen O'Connor's OSHA Practice and a former OSHA prosecutor with the DOL Office of the Solicitor, can be reached at 212-883-4927 or firstname.lastname@example.org.
Posted on Oct 23, 2017