Recent news reports of active shooter situations provide a stark reminder: employers, regardless of size or industry, should have an action plan for responding to a threatening or violent situation in the workplace. Yet, many employers do not even have a workplace violence policy, let alone prevention or response plans.
While federal law does not specifically require employers to institute a workplace violence policy or response plan, the federal Occupational Safety and Health Act’s (OSHA’s) “general duty” clause does require employers to furnish a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” (See Section 5(a)(1) of the Occupational Safety and Health Act, 29 U.S.C. 654(a)(1).)
If an employer has notice of the risk of violence in the workplace (such as knowledge of prior acts of workplace violence, threats, intimidation, or other indicators of the potential for violence in the workplace), and the employer does not implement adequate safeguards, then the employer takes on the risk of OSHA investigating and potentially citing and fining the employer for breaching the general duty clause. Thus, proactively instituting a workplace violence policy and prevention plan may assist an employer in defending against an OSHA claim that an employer breached the general duty clause.
Aside from an employer’s general duty under OSHA to provide a workplace “free from recognized hazards,” instituting a workplace violence policy and prevention plan before an incident of workplace violence occurs may reduce the impact of negligent hiring, negligent retention, and negligent supervision claims against an employer. Employers should review their hiring practices, including background check and reference check procedures, to screen applicants for criminal records and prior history of violence or abuse, while bearing in mind that such background and reference checks must be completed in accordance with federal, state, and local laws.
New federal requirements may be forthcoming to protect workers in some industries. Just before President Trump took office, OSHA issued a Request for Information seeking public input regarding whether a standard is needed to protect healthcare and social assistance employees from workplace violence. Public comments are due on or before April 6, 2017. However, it is unclear when, if ever, any OSHA regulations regarding workplace violence will be proposed or finalized. Thus, employers who do not have a workplace violence policy and prevention plan in place should assess their risks. Employers should also be sure to check any applicable state or local laws that may already require the employer to have a workplace violence policy and prevention plan in place, such as this Connecticut law and this Washington law applicable to healthcare providers.
While no company can completely prevent an incident of workplace violence from occurring, acting proactively by implementing preventative measures in the workplace and planning for the worst case scenario may reduce the impact of violence in the workplace.