News reports of yet another workplace shooting have become all too frequent in our media-saturated world. The seemingly constant reports of shootings makes clear to all employers the inconvenient truth that no workplace is totally immune from the possibility that a violent incident will occur. Indeed, according to the federal Occupational Safety and Health Administration (OSHA), more than two million Americans are exposed to some form of workplace violence each year. What are your obligations to protect your employees from acts of violence, and what steps should you take to make your workplace as safe as possible? 
OSH Act obligations
Under the Occupational Safety and Health Act (OSH Act), employers have a general duty to maintain a safe workplace. In a case that involved a breach of that duty, OSHA ruled last summer that an employer had failed to fulfill its duty to adequately protect an employee from being fatally stabbed in the course of her work.
The employee was a social service coordinator for Integra Health Management, which coordinates healthcare coverage for insurance companies. Her job required her to visit “members” with insurance coverage to ensure adequate coordination among their healthcare providers. One of the members for whom she was responsible had a history of mental illness and violent behavior.
The coordinator reported to Integra that during visits to the member’s home, he said things that made her uncomfortable. Integra took no action in response to her report, and the coordinator continued to make her home visits. On her last visit to his home, the member fatally stabbed her.
Following an investigation, OSHA charged Integra with violating the OSH Act’s General Duty Clause, which requires employers to provide a safe workplace for employees. OSHA claimed that Integra failed to furnish the coordinator with a workplace free from hazards that were likely to cause death or serious injury. In particular, the agency said that Integra exposed her to being harmed by members with a history of violent behavior.
The case was tried before an administrative law judge (ALJ), who determined that Integra didn’t have an adequate workplace violence policy. Additionally, the ALJ found that the company failed to adequately train the coordinator about the potential for members to be violent or provide her with information about her assailant’s medical background and criminal history.
Finally, the judge noted that Integra failed to monitor the coordinator’s progress notes, which identified her concerns about the member, and took no steps to assist her when she indicated that he made her uncomfortable. Secretary of Labor v. Integra Health Management, Inc., OSHRC No. 13-1134 (June 22, 2015).
Violence prevention plan
Integra case emphasizes the importance of having an effective violence prevention plan in place to protect your employees. The first step of such a plan is to train your supervisors to be vigilant about recognizing any unusual or strange behavior by employees or clients, especially if it’s hostile or belligerent. Supervisors shouldn’t be tasked with addressing the situation directly; rather, they should report to HR what they have observed and the nature of their concerns. That way, you can deal with issues of potential workplace violence in a systematic and orderly fashion.
Additionally, you should establish a means by which employees can notify HR of any perceived threats or violent acts. You must treat such reports with as much confidentiality as possible, and undertake a prompt and thorough investigation. Coordinate any investigation with outside counsel knowledgeable about employment and workplace safety laws.
Threat assessment team
Consider establishing a threat assessment team that includes not only an HR representative but also a management decision maker and your director of security, if you have one. Identify a psychiatrist in your community or another expert who has experience dealing with violent individuals and can act as a consultant to your team as the need arises.
If you know you have a troubled employee and fear the potential for a violent incident, you may want to take additional steps, such as maintaining a watchful eye and monitoring the employee’s behavior at work. If you have serious concerns about potential violence based on your observations of his behavior, you may want to consider placing the employee on paid leave pending a fitness-for-duty exam by a psychiatrist or some other mental health professional.
Sometimes the only thing that may be necessary after you’ve conducted an investigation is to meet with the employee who has been engaging in the problematic or troublesome behavior. Let the employee know that her actions have been disruptive and are causing concern. In your conversation with her, you can reinforce the need for her to adhere to your workplace conduct standards and warn her that you will take action if she fails to do so.
ADA concerns
It’s important not to be an armchair psychiatrist. You are not a doctor. If you start playing doctor, you may run afoul of the Americans with Disabilities Act (ADA) and set yourself up for a claim that you took an employment action because you regarded the employee as disabled.
Nonetheless, you can ask an employee if anything specific is bothering him and inquire how you might be able to help him act appropriately in the future. Remember, focus on the employee’s behavior, not on what you believe may be an underlying mental condition.
If the employee turns down your offer of assistance and continues to act in an inappropriate fashion—and particularly if he makes any threats—you may engage in corrective discipline, up to and including termination, depending on the nature of his misconduct. In that regard, you should have a zero-tolerance policy toward threats or acts of violence. Your policy should clearly inform employees that you will take appropriate disciplinary action, including termination, against anyone who engages in violent or threatening conduct.
Fortunately, the courts have recognized that the ADA doesn’t protect employees who engage in threatening behavior, regardless of whether their behavior is due to an underlying disability. Even the U.S. 9th Circuit Court of Appeals, which is based in San Francisco and is noted for its proemployee rulings, recognized in a case decided last summer that disability laws provide no legal protection to a disabled employee who threatens to kill his coworkers.
In that case, the employee claimed that his threatening statements were caused by his disability, major depressive disorder. The court of appeals affirmed the dismissal of his disability discrimination lawsuit, reasoning that even if he was disabled, he wasn’t protected under the disability laws because he couldn’t establish that he was qualified for his job at the time of his discharge. As the court of appeals explained, “An essential function of almost every job is the ability to appropriately handle stress and interact with others. . . . [An employee] is not qualified when that stress leads him to threaten to kill his coworkers.” Mayo v. PCC Structurals, Inc., No. 13-35643 (9th Cir., July 28, 2015).
Don’t punish concerted action
Before disciplining an employee for statements made either in the workplace or on social media, make sure the comments legitimately threaten harm or are otherwise legally subject to disciplinary action. The National Labor Relations Act (NLRA) protects concerted activity by employees when they are commenting to other employees about their working conditions.
The National Labor Relations Board (NLRB) has ruled in several cases that an employee’s social media postings about a supervisor or other work-related issues are protected under the NLRA, even if the posts contain ill-considered or inflammatory language. If you’re unsure about whether employees’ comments are legally protected, it’s always best to consult with legal counsel before taking any action to make certain you have covered all your bases.
No easy solutions
Finally, bear in mind that each situation is different. There is no cookie-cutter response to potential workplace violence. What may hold true with respect to an employee in one situation may not be the case for another employee in a different situation.
It may be easy after the fact to identify the signs of an employee’s violent tendencies that led to tragic consequences. Predicting whether someone will commit violence in the future isn’t so simple, however. An employee may engage in an outburst or act inappropriately toward a 
coworker or a supervisor, but that doesn’t necessarily mean he will later commit a violent act. Assessing how your employees will behave in future situations is more of an art than a science.
The best we can do is accept the fact that workplace violence does occur, take appropriate measures to identify potentially violent situations ahead of time, and have a plan already in place to deal with each situation as it arises.
Jonathan R. Mook is a founding partner of DiMuroGinsberg, PC in Alexandria, Virginia. He may be contacted at jmook@dimuro.com.
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