By Adele L. Abrams, Esq., CMSP and sarah korwan, esq.
In recent years, employers have experienced workplace violence at record rates. Workplaces, whether it be Walmart, a restaurant or bar, a school, or a place of worship, are making the headlines. The U.S. Bureau of Labor Statistics reports that, in 2017, 458 U.S. workers were workplace homicide victims and 15% were perpetrated by co-workers or other work associates. It is consistently in the top 4 causes of workplace deaths overall, and workplace violence is the number one cause of occupational death for women.
About half (48%) of HR professionals responding to an SHRM survey said their organization had at some point experienced workplace violence. That survey included incidences of harassment and intimidation, which can be precursor events, as well as physical assaults and homicides. A University of Chicago survey found that only 45% of employers had a program to prevent workplace violence, half said they did not train workers on how to respond to an act of workplace violence, and nearly one-third of workers said they didn’t know what to do if they witnessed or were involved in workplace violence.
Consequently, this is an area of emphasis now for the Occupational Safety & Health Administration (OSHA), which has a role in investigating the employer’s actions in protecting its workers from such threats or actual incidents, and can issue citations of up to $132,598 per affected worker in situations involving willful failure to act.
OSHA defines workplace violence as “any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the worksite.” In OSHA’s view, this encompasses threats and verbal abuse as well as physical assaults and homicide, and OSHA notes that it can cause psychological harm as well.
If a workplace violence incident results in a worker being on medical leave due to PTSD, this must be reported to OSHA (if hospitalized) or included on the employer’s OSHA 300/301 logs (subject to privacy requirements).
There are four basic types of workplace violence threats that employers must consider when creating a program, although there is no true “one size fits all” approach as each location may have unique security considerations. All four types should be part of the employer’s risk assessment:
- Type1: Violence committed during a crime – e.g., worker is assaulted during a robbery of the business (stranger-to-stranger)
- Type 2: Violence committed by customers/visitors to the worksite (customers/vendors/contractors could fall in this category)
- Type 3: Violence committed by a co-worker against another co-worker (employee-to-employee, including temporary workers)
- Type 4: Violence committed by persons with whom employees have relationships outside of the workplace – domestic violence spillover (may involve violation of protective order or restraining order)
About one-quarter of workplace violence situations relate to personal relationships (individual gains access to work to target an employee or customer who is a current or former intimate partner), and one study revealed that 44% of employed adults personally experienced domestic violence’s effect in their workplaces, and 21% identified themselves as victims of intimate partner violence. Some states have now enacted laws barring employers from discriminating in employment by firing or refusing to hire a person because they have obtained a protective or restraining order against another, where the scope of the order includes the protected employee’s workplace.
The U.S. Department of Labor reports that more than 70% of workplaces do not have a formal program addressing workplace violence. While there are no specific federal OSHA standards on workplace violence, under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970, employers are required to provide their 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." In a 2019 decision involving Integra (a health care company), OSHA’s General Duty Clause citation, issued after a worker was killed by a third party, was upheld by the Occupational Safety & Health Review Commission, creating binding case law precedent.
OSHA is now in the process of promulgating a specific workplace violence prevention rule, but it is limited in scope (currently) to the health care and social services sectors, which have significantly higher rates of violence from patients, clients and the public. The scope could be expanded to cover all employers, however, if the rule is not completed within the current administration. The U.S. House of Representatives has held workplace violence hearings during 2019 and is considering legislation to force OSHA to complete its rulemaking or else have a legislated interim rule take effect.
Some OSHA state-plan states expect this to be addressed through injury and illness prevention program requirements. For example, Cal-OSHA adopted a workplace violence prevention rule for healthcare in 2017 and has other guidelines for other industries to use in avoiding General Duty Clause enforcement. See www.dir.ca.gov/dosh/dosh_publications/worksecurity.html
Even Canada already has workplace violence prevention requirements for employers, including U.S. companies with operations there. The new Canadian regulations are set to come into force in conjunction with the harassment and violence amendments to the health and safety sections of the Canada Labour Code, which will be effective sometime in 2020. The regulations contain the following upcoming requirements for employers, which is not a bad checklist for U.S. employers to consider as they develop their own programs with an eye toward OSHA.
Those provisions will require employers to:
- Develop a workplace violence and harassment prevention policy which also accounts for external dangers, such as family violence and stalking, which could affect the workplace.
- Conduct a workplace assessment that identifies risks of violence and harassment in the workplace and implement preventive measures to protect the workplace from these risks;
- Develop and implement emergency procedures to be followed where an occurrence of workplace violence or harassment poses an immediate danger to employees;
- Ensure training is delivered to members of the workplace (this includes training on crisis prevention, personal safety, and de-escalation techniques);
- Make information available regarding support services;
- Implement a new resolution process for occurrences of workplace violence and harassment, requiring employers to respond to every notification of an occurrence and pursue either early resolution, conciliation, or investigation; and,
- Keep various records regarding harassment and violence in the workplace.
Currently, U.S. courts interpret OSHA's general duty clause to mean that an employer has a legal obligation to provide a workplace free of conditions or activities 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. This includes foreseeable workplace violence, where there are feasible methods of risk mitigation.
OSHA has guidance and resources on workplace violence prevention and while this guidance does not constitute a binding regulation, it can be used to gauge whether the employer responded in a reasonable way. The guidance can also be used to impute knowledge to the employer. See www.osha.gov/SLTC/workplaceviolence/evaluation.html.
OSHA has developed Enforcement Procedures that provide guidance for conducting workplace violence inspections and issuing citations. Its 2017 version, CPL 02-01-058, can be reviewed at www.osha.gov/sites/default/files/enforcement/directives/CPL_02-01-058.pdf. While that publication is aimed at inspectors, a review of it can be useful to employers in assessing what actions OSHA will consider as “due diligence” and also what might constitute notice of a “recognized hazard.”
An employer who previously has experienced acts of workplace violence, or becomes aware of threats, intimidation, or other indicators showing that the potential for violence in the workplace exists, would be on notice of the risk of workplace violence and should implement a workplace violence prevention program combined with engineering controls, administrative controls, and training. This is why supervisor training, worker knowledge of their rights and proper reporting channels, background checks on employees, and careful prequalification of temporary staffing agencies and contractors who send their workers onto your worksite, can be critical in workplace violence prevention.
Suicide in the workplace is on the rise and too often the person takes other co-workers or significant others with them. Industries such as construction and heavy industrial operations can create a “perfect storm” of all the risk factors that contribute to suicide risk. Demographically, these industries are predominantly males in industries where there is a perception of stigma to the appearance of anything not stoic, and self-reliant, which deters a help-seeking mentality. At-risk workplaces to be transient in nature, so a workplace community is frequently lacking, and heavy use of temporary personnel can contribute to this lack of camaraderie and support infrastructure.
Drug addiction or an event such as an injury or lay-off is, too often, a trigger for suicide within the workplace. Recently, a client had to file an OSHA report, after a worker attempted suicide by shooting himself in the head with a nail gun after being terminated. It may seem illogical to require reporting a suicide or suicide attempt to OSHA since it didn’t stem from any actual job responsibilities, but OSHA applies the “geographic presumption,” meaning incidents that occur in the work environment are work-related unless a specific exemption applies. OSHA requires a report within 24 hours of an in-patient hospitalization, amputation or eye loss, and within 8 hours for fatal events (some state OSHA agencies have more stringent requirements). There are mandatory minimum penalties of over $5000 for failure to report. OSHA recently added a page on its website, Preventing Suicides, which contains telephone numbers, in English and Spanish, for suicide prevention hotlines and chatlines. See www.osha.gov/preventingsuicides/
It is wise to review OSHA’s guidance on both workplace violence and suicide prevention, and consider updating workplace safety and HR programs to reflect preventative approaches, and to include awareness on these issues as part of worker and supervisor training.
(Article published in PalletCentral Magazine, September-October 2019)
Adele L. Abrams is an attorney and safety professional who represents companies in litigation with OSHA and provides safety training and consultation. Sarah Korwan is an attorney who handles cannabis, employment and safety law in West Virginia. The Law Ofice of Adele L. Abrams PC has three offices: Beltsville, MD; Denver, CO; and Charleston, WV.