On September 8, 2011, the federal Occupational Safety and Health Administration (OSHA) issued its inaugural written enforcement directive for in-cidents of workplace violence. The directive will be used by district supervisors and area directors in evaluating whether to conduct an investigation into allegations of workplace violence. Moreover, the directive lists inspection procedures to be followed by compliance officers while conducting inspections as well as potential methods of abatement available to employers.
The directive defines “workplace violence” as “violent acts (including physical assaults and threats of assaults) directed towards persons at work or on duty.” The directive lists four categories of workplace violence based upon the relationship between the perpetrator and the target of the workplace violence. These include: (1) criminal intent (violent acts by people who enter the workplace to commit a robbery or crime or current or former employees who enter the workplace with the intent to commit a crime); (2) customer/client/patient (violence directed at employees by customers, clients, patients, etc.); (3) co-worker (violence against co-workers by a current or former employee); and (4) personal (violence in workplace by a non-employee who has a relationship with an employee).
The directive identifies two high-risk industries that are particularly susceptible to workplace violence: health care and social service settings; and late-night retail settings. The directive also details numerous risk factors that indicate the potential for workplace violence: (1) working with unstable or volatile persons in certain health care and social service or criminal justice settings; (2) working alone or in small numbers; (3) working late at night or during early morning hours; (4) working in high crime areas; (5) guarding valuable property or possessions; (6) community-based health or drug abuse clinics; (7) exchanging money in certain financial institutions; (8) delivery of passengers, goods or services; and (9) mobile workplaces (i.e., taxi drivers).
The directive advises that inspections “generally shall not be considered” based solely upon threats by co-workers, but further states that such incidents may be referred by OSHA to the appropriate criminal enforcement agency, the Equal Employment Opportunity Commission, or the National Labor Relations Board. Inspections may be initiated following a complaint, referral, fatality or catastrophic event (hospitalization of three or more employees) involving an incident of workplace violence. Inspections are more likely in high-risk industries or workplace settings that include the cited “risk factors.” Employers also may face citations for potential workplace violence issues during programmed inspections.
The directive lists potential engineering or administrative controls available to employers to minimize or eliminate the risk of workplace violence. A few of the more obvious engineering controls include alarm systems, panic buttons and hand-held alarms. Employers with such devices also need to arrange for a reliable response system. Other engineering controls include metal detectors, closed-circuit recordings on a 24-hour basis, curved mirrors at hallway intersections or concealed areas, and locking of doors (in accordance with fire codes).
The directive states that administrative controls include changing management practices and procedures to reduce hazards, establishing liaisons with local police and state prosecutors, requiring employers to report all assaults or threats, maintaining a log book of all reported assaults or threats, and advising employers of procedures for requesting police assistance or filing charges.
The directive provides advice on how an employer can develop a written workplace violence prevention program. These steps should include: (1) adopting a policy statement regarding potential violence in the workplace that assigns oversight and prevention responsibilities; (2) performance of a workplace violence hazard assessment and security analysis; (3) development of workplace violence controls; (4) implementation of a recordkeeping system designed to report any violent incidents; (5) training employees on the company’s workplace violence program; (6) annual reviews of the program; (7) development of procedures and responsibilities in the event of a violent incident; and (8) development of a response team to provide immediate care for victims, re-establishment of safe work areas, and debriefing sessions with victims and co-workers.
It is also important to immediately retain counsel following any act of workplace violence. To prove a violation of the General Duty Clause, OSHA is required to show that workplace violence was a recognized hazard in the industry and that there are feasible means of abatement. The extent and manner in which a workplace violence inspection is managed by the employer will directly impact its ability to defend against OSHA citations and other potential civil or criminal proceedings.
Ogletree Deakins can provide assistance in the development and implementation of a workplace violence prevention program. In addition, Ogletree Deakins can help your company identify competent medical professionals who are able to assist employees in their recovery time after an act of workplace violence.