Have a Plan to Address the Recognized Hazards of Workplace Violence

An unfortunate emerging issue for employers is the rise of workplace shootings. Even courts and judges have taken note in their judicial opinions that workplace violence is increasing. Of course, employees may be exposed to different degrees of violence at work. Workplace shootings are on the extreme end of the spectrum.

The U.S. Bureau of Labor and Statistics has found that workplace shootings have increased by more than 10% in recent years. As a result, employers should be aware of the risk of workplace shootings and the legal issues involved. You also should adopt a plan and policy to help employees prepare in the event that the worst-case scenario occurs.

Legal Issues for Employers

Employers have a general duty under the Occupational Safety and Health Act of 1970 (OSH Act) to maintain a workplace free from serious recognized hazards. The OSH Act was originally motivated by a desire to cut down on the number of workplace deaths caused by industrial accidents and exposure to unsafe working conditions. But the Act addresses many types of hazards.

According to guidelines published by the Occupational Safety and Health Administration (OSHA), employers are not strictly liable for violence in the workplace, including workplace shootings. There are no standards in the OSH Act that specifically require you to protect your employees from criminal acts committed by violent persons. Courts have noted that because workplace violence affects a wide range of employers, enforcing the OSH Act in a way that polices social behavior (including workplace shootings) would create an “extraordinary” burden on employers and enforcement agencies.

General Duty to Provide a Safe Workplace

But even though workplace violence isn’t specifically mentioned in the OSH Act, you shouldn’t ignore the possibility that a tragedy could occur. Remember that you do have a general duty to take actions to help minimize the risk of workplace violence if you recognize that there is a risk.

An employer breaches its general duty to protect employees from workplace hazards if all four of the following factors are true:

1. The employer failed to keep the workplace free from a hazard that employees were exposed to.
2. The hazard was recognized.
3. The hazard was likely to cause death or serious physical harm.
4. There was a feasible and economically viable way to correct the hazard.

Although OSHA recognizes that employers will not be strictly liable for workplace shootings, it has published voluntary guidelines to help you deal with the emerging issue.

At-Risk Industries

OSHA has noted that employers in certain industries, including healthcare providers, social services agencies, late-night retail establishments, and taxi or car services, are at higher risk for violence against their employees. Of course, employers in those industries aren’t the only ones that could be affected by workplace violence, but they should be particularly aware of the risk.

Additionally, some states have adopted laws that impose a higher burden on employers to prevent workplace violence. A few state laws focus specifically on at-risk industries. For example, a Connecticut law requires certain healthcare providers to adopt a response plan for workplace violence, and a Florida law requires convenience stores to install security devices to help decrease safety risks.

Customer Negligence Claims

While employees who are victims of workplace violence will likely be required to file workers’ compensation claims, customers may be able to sue an employer for negligence when they sustain injuries due to workplace violence.

Negligence is governed by state law. A victim will need to prove the employer owed him a duty of care and it breached that duty. However, an employer may be able to avoid liability by showing the workplace violence was a superseding cause of the customer’s injury and the violence was unforeseeable.

5 Elements of Workplace Violence Prevention

OSHA has published five recommendations to help employers deal effectively with workplace violence. You should ensure your violence prevention plan and your employee handbook address all five elements:

1. Management commitment and employee involvement;
2. An analysis of worksite security;
3. Hazard prevention and control;
4. Safety and health training for employees and management; and
5. Effective record keeping and evaluation of the workplace violence prevention program.

Having a plan in place could help your employees be more prepared if a violent incident occurs. Knowing where to go, whom to call, and what to do could make a huge difference.

Bottom Line

Employers should be aware that workplace violence is an increasing phenomenon and adopt a clear policy that addresses the potential if it happens. Having a plan in place for employees to follow can be critical during an emergency. Your policy should include procedures for notifying emergency responders, management, coworkers, and employees’ families. It also should address preventive measures for recognizing and reporting potential threats of workplace violence before they materialize into something more.

Sarah Otto is an Associate at Foulston Siefkin LLP. She also contributes to the Kansas Employment Law Letter and can be reached at sotto@foulston.com.