Workplace violence has become a growing concern for employers and employees alike– and with good reason. Approximately two million workers report having experienced workplace violence each year. According to the Bureau of Labor Statistics Census of Fatal Occupational Injuries, of the 4547 fatal workplace injuries reported in 2010, 506 of them were workplace homicides. I’ll bet that got your attention. Workplace violence has also gotten someone else’s attention: the Occupational Safety and Health Administration (aka OSHA, aka for our purposes the OSH-Administration). Let’s learn a bit about what the OSH-Administration has to say about workplace violence after the jump…
What exactly is workplace violence? The OSH-Administration defines workplace violence as “violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty”. The OSH-Administration issued a directive in 2011 advising its compliance officers of enforcement procedures for the investigation and inspection of workplace violence incidents. In that directive the OSH-Administration described four categories of workplace violence. The are:
- “Criminal intent“, which is defined as violent acts by people who enter the workplace with the intent to commit a robbery or other crime or current or former employees who enter the workplace with the intent to commit a crime;
- “Customer/clients/patients”, is violence committed by customers, clients, patients, students, inmates or any others to whom the employer provides a service;
- “Co-worker”– violence against co-workers, supervisors or managers, by a current or former employee, supervisor or manager;
- “Personal”– violence in the workplace by someone who does not work there but who is known to or has a personal relationship with an employee.
Now, we know that the OSH-Administration under the OSH-Act can and does get involved in issues such as occupational illnesses and accidents, or exposure to chemicals, but is workplace violence an OSHA matter? The OSH-Administration says yes. The OSH-Administration bases its authority to get involved in injuries arising out of workplace violence on Section 5(a)(1) of the OSH-Act of 1970. This section is known as the “General Duty Clause”, which requires employers to keep their workplaces “free from recognized hazards likely to cause death or physical harm”. The OSH-Administration takes the position that workplace violence is a serious recognized hazard. It’s certainly not hard to see their point. The OSH-Administration has also identified late-night retail, health care and social services as more likely to experience workplace violence and therefore sees them as high-hazard industries. Based on some recent cases, it’s not hard to see that point either.
Just last year, the OSH-Administration fined Brookdale University Hospital and Medical Center $78,000 due to dozens of incidents of employees sustaining injuries and assaults at the hands of patients and visitors. The most serious occurrence resulted in severe brain injuries to a nurse. $70,000 of that total was attributable to one wilful violation; the other $8,000 in fines arose out of failure to review and provide illness and injury reporting forms.
In 2011, the OSH-Administration cited the Renaissance Project, Inc,, an addiction facility in Ellenville, NY, under the General Duty clause, following the death of one employee and the wounding of another, allegedly at the hands of one of the facility’s clients. The OSH-Administration’s investigation found that The Renaissance Project had not developed or implemented adequate measures to protect its staff from physical assaults and had failed to train its staff on how to respond in case of an actual or threatened assault. (The OSH-Administration issued an additional four serious citations due to lack of written exposure control plan and training for employees exposed to bloodbourne pathogens.) The Renaissance Project ultimately settled with OSHA, agreeing to correct all the issues cited in the inspection in addition to implementing other safety measures, thereby avoiding what could have been $28,000 in fines. Similarly, OSHA cited Acadia Hospital, a psychiatric facility in Bangor, Maine in 2011 based on 115 instances in which it failed to take adequate measures to protect its employees from assaults by patients. The hospital settled with OSHA and paid $6,300 in fines.
In 2012, OSHA cited TMT, Inc with four serious citations in the aftermath of an aggravated robbery that led to the death of an employee of its Whip In convenience store in Garland, Texas. OSHA also investigated the company’s three other stores in Dallas and Mesquite, finding that workers in those locations were exposed to similar dangers.
Despite OSHA’s crackdown on failure to address workplace violence risks, it has yet to use rule making to issue any standards for addressing the issue. Instead it relies on the General Duty clause and updated voluntary guidelines ir issued on April 2 of this year on how to prevent workplace violence. Why hasn’t OSHA issued proposed rules? Rule making can be a cumbersome, time-consuming process, and for now, OSHA seems to be doing just fine relying on the General Duty Clause. Unless an employer successfully challenges this approach via litigation, OSHA will likely continue in this manner.
If you employ people in a high-hazard industry, here are some things you can do hopefully keep workplace violence –and OSHA–at bay:
- Develop a clear “zero-tolerance” policy toward workplace violence, along with a workplace violence program, outlining procedures to be followed in case of actual or threatened assaults;
- Train your employees as to what conduct is and is not acceptable and what to do if they witness or experience workplace violence, and how to protect themselves;
- When appropriate, install video surveillance, extra lighting, and alarm systems, and minimize access by outsiders by using identification badges, electronic keys and guards;
- Encourage all employees to report all incidents and threats of workplace violence;
- Promptly report incidents to the police, procure prompt medical attention, and promptly investigate all incidents.
- Partner with in-house or outside counsel and safety experts (you knew that one was coming, right?)
What happens if there has already been an injury/illness that has triggered OSHA involvement? Can you do any damage control? Let’s look into that next week. Bye for now!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here.
Click here to register — and get HRCI credits for the recorded presentation of my webinar on Pre-Employment Screening.
If you want to really be up to date on hot-button employment law topics, with a monthly EmpLAWyerology Alert subscription and learn about upcoming webinars email firstname.lastname@example.org.
“Like” The EmpLAWyerologist on Facebook, by clicking here.