OSHA Update – Employers as Guardians Against Violence

Earlier this month, OSHA issued Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents. This new Directive is aimed at providing compliance officers guidance for responding to, and inspecting, allegations and incidents of workplace violence.  In conjunction with the Directive, OSHA launched a new webpage focused on preventing workplace violence.

Under the Directive, OSHA defines “workplace violence” in accordance with the National Institute for Occupational Safety and Health’s definition, which is “violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty.” The Directive groups workplace violence into the following four types:

• Criminal Intent – defined as “violent acts by people who enter the workplace to commit a robbery or other crime – or current or former employees who enter the workplace with the intent to commit a crime.”
• Customers/Clients/Patients – defined as “violence directed at employees by customers, clients, patients, students, inmates or any others to whom the employer provides a service.”
• Co-worker – defined as “violence against co-workers, supervisors, or managers by a current or former employee, supervisor, or manager.”
• Personal – defined as “violence in the workplace by someone who does not work there, but who is known to, or has a personal relationship with, an employee.”

OSHA asserts that it has the authority to cite employers for workplace violence under the General Duty Clause. Specifically, employers are required to keep their workplaces free from recognized hazards and OSHA takes the position that workplace violence is a serious recognized hazard. For the last several years, OSHA has claimed that late-night retail, health care and social services are high hazard industries, meaning that these industries are particularly prone to experiencing workplace violence.

The new Directive seems to broaden the scope to include any “complaint, referral, or fatality and/or catastrophe involving an incident of workplace violence.” Also, the new Directive lists “known risk factors” that may prompt a compliance officer to investigate an employer’s workplace violence prevention efforts. These factors include: working alone or in small numbers; working in high-crime areas; delivering passengers, goods or services; or having a mobile workplace (such as a taxi).

The Directive instructs compliance officers to determine whether an employer has a workplace violence prevention program, which would include reviewing any written safety programs, injury and illness records, medical and/or police records, and training records. Further, the Directive describes abatement measures for employers.  These include engineering controls such as alarm systems, panic buttons, metal detectors, and administrative controls (such as implementing workplace violence training).

States that operate their own job safety and health plans are not required to adopt the Directive; however, such plans are required to be “at least as effective” as federal OSHA and are encouraged to adopt the Directive. State plans that intend to adopt the Directive are required to notify OSHA.

As examples of recent enforcement, OSHA cited a medical employer for violation after the death of one employee and injuries to another inflicted by a patient at an addiction treatment facility. In another instance, OSHA issued a citation to an employer for failing to protect employees at a psychiatric hospital from assaults by violent patients.