Workplace Violence: What Does OSHA Require of Employers?

By Tracey Truesdale and Jason Patterson - Franczek P.C.

June 18, 2019

Franczek P.C. recently hosted an at capacity seminar on preventing workplace violence. As a follow-up to that event, and as further introduction to Tracey Truesdale and Jason Patterson who frequently counsel employers on this issue, we would like to share what the law, and more specifically the Occupational Safety and Health Act, says about violence in the workplace.

What is workplace violence? The U.S. Occupational Health and Safety Administration defines workplace violence as “any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site.” BLS statistics show that workplace violence is currently the third-leading cause of workplace deaths in the U.S.

Who commits acts of workplace violence? Threat of violence in the workplace can come from just about anywhere – an intruder, a domestic relationship, and co-worker on co-worker.

What types of employees are at risk? According to OSHA, certain categories of employees are at higher risk of exposure to workplace violence. These include workers who exchange money with the public, such as retail workers and bank tellers; healthcare professionals; those who work alone or in small groups like delivery drivers, utility workers, cable installers, letter carriers, and law enforcement; and those who work at night and in high crime areas. But, as we know from events like the shooting at the Henry Pratt Co. in Aurora and the Pennsylvania company mentioned above, workplace violence can happen anywhere and to anyone.

What does OSHA require employers to do about workplace violence? In actuality, very little. At present, OSHA has no specific standards pertaining to workplace violence, although the agency has developed written procedures for its field inspection personnel to follow when conducting OSHA inspections and citing employers for occupational exposure to violence.

OSHA’s authority to cite an employer in the context of a workplace violence incident is derived from the OSH Act’s “general duty” clause, which requires employers to provide employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm." Courts have interpreted OSHA's general duty clause to impose upon an employer a legal obligation to provide a workplace free of conditions that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is a feasible method to abate the hazard. An employer that has experienced or becomes aware of actual or threatened workplace violence would be on notice of the risk of workplace violence.

What can employers do? There are several preventative measures that employers can take to promote a safe and secure work environment.

•    Develop and implement a zero tolerance policy. Create a policy, train employees to its expectations and enforce it. Key to enforcement is taking every threat seriously and not excusing employee behavior as “only joking” or “blowing off steam.”
•    Create an interdisciplinary threat assessment team that includes one or more members of management, a mental health professional, legal counsel, and local law enforcement.to identify risk factors for workplace violence in your particular work environment and solutions to manage risk.
•    Train employees on how to recognize and minimize risk. This includes not only following specific security procedures for your workplace, but also recognizing behaviors that might signal future violence. According to the National Safety Council, these include:
 
o    Excessive use of alcohol or drugs
o    Unexplained absenteeism, change in behavior, or decline in job performance
o    Depression, withdrawal, or suicidal comments
o    Resistance to changes at work or persistent complaining about unfair treatment
o    Violation of company policies
o    Emotional responses to criticism and mood swings
o    Paranoia

•    Have an emergency response plan in place and train employees to it. Many police and fire departments have added “run, hide, or fight” training to their building evacuation drills.
•    Utilize EAP resources. Upon recognizing the signs that something is just not right with a specific employee’s behavior, referral to EAP is an extremely helpful but often unutilized resource. A best practice is to require an employee who has threatened violence to undergo EAP evaluation before being allowed to return to the workplace.
•    Take legal action. Since 2015, Illinois employers have had the ability to secure a restraining order to protect their premises and personnel from threats of violence under the Workplace Violence Prevention Act.

What’s coming?  HR1309 was introduced in February, 2019 to require OSHA to create a federal workplace violence prevention standard for health care and social services workers.  The proposed standard would require employers in those industries to develop workplace-specific plans to prevent violence. The bill recently moved out of committee and is expected to proceed to a full House vote in the coming weeks.

Tracey Truesdale and Jason Patterson regularly counsel employers on workplace safety concerns, including post-accident advice and representation as well as in enforcement actions involving OSHA and MSHA. For more information on developing a workplace violence prevention program, or for further guidance on this critically important issue, please contact Tracey, Jason, or any other Franczek attorney.