Sadly, workplace violence continues to be a topic that challenges many organizations.  Indeed, as the news reports continue to remind us, employees and non-employees often take out their aggression and violent acts within the workplace.  As the recent attacks at hospitals in Pittsburgh and in Washington, D.C. demonstrate, there remains a high rate of fatal and non-fatal assaults and violent acts committed within the workplace, and, in particular, within the healthcare industry.  One of the struggles that employers face is trying to prevent violent conduct by third-party non-employees who are generally beyond the control of the employer.

Employers can face significant liability as a result of workplace violence incidents, even when committed by a non-employee.  For example, although the Occupational Safety and Health Administration (“OSHA”) has no specific standard addressing workplace violence hazards, OSHA has released voluntary guidelines to address these issues in various industries.  OSHA also offers all employers guidance for preparing for and handling emergencies and for developing a workplace violence program, including the adoption of a zero-tolerance policy. In its “Guidelines for Preventing Workplace Violence for Health Care & Social Service Workers,” OSHA sets forth uniform procedures for responding to incidents and complaints, and conducting inspections in the health care industry, and provides recommendations for workplace violence prevention.

In the absence of a specific standard, OSHA can still cite employers under the catch-all “General Duty Clause” of the OSH Act.  This provision requires employers to furnish employees with a working environment free from hazards that: (a) are recognized by the employer or the employer’s industry; (b) have the potential for causing death or serious physical harm; and (c) may be abated by feasible means.  In a compliance directive for “Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents,” released late last year, OSHA outlined the procedures for using the General Duty Clause to cite employers for not adequately protecting against incidents of workplace violence.

Some recent enforcement actions include a hospital in Connecticut, which was cited for failing to provide adequate safeguards against workplace violence when employees in the psychiatric ward, emergency ward, and general medical floors were injured by violent patients.  Similarly, another OSHA inspection identified over 115 instances in which employees of a psychiatric hospital and clinic were assaulted by patients.

OHSA’s Guidelines set forth a number of recommendations that all organizations should implement to prevent workplace violence, including:

  • Create a Written Zero-Tolerance Workplace Violence Prevention Program
  • Conduct Employee Training
  • Screen Patients for Potential Violence
  • Ensure Security Personnel are Available and Trained
  • Implement System to Flag Patient’s History of Violence

A critical aspect of a prevention plan is the implementation of effective background checks of applicants and employees in order to ensure that individuals with a violent history are carefully screened.  However, employers should be mindful that several federal and state laws restrict the kind of information an employer may be able to obtain concerning an applicant’s qualifications, job abilities, trustworthiness, and propensity towards violence.

For example, a number of states prohibit most employers from considering an applicant’s arrest record if the arrest did not lead to conviction.  Further, private employers may not bar individuals from applying for or holding jobs based upon criminal convictions unless the convictions are job-related or the individual poses a direct threat to public safety or property.

Importantly, with respect to potential discrimination issues, the Equal Employment Opportunity Commission (the “EEOC”) takes the position that because the reliance on arrest and conviction records may have a disparate impact on some protected groups, such records alone cannot be used to routinely exclude persons from employment.  However, the EEOC does permit employers to rely on conduct which indicates unsuitability for a particular position as a basis for exclusion, and employers will need to show that that the exclusion is job-related and consistent with business necessity.  The EEOC is expected to issue updated guidelines with respect to criminal background checks.  As one EEOC Commissioner recently commented at a law conference, the EEOC is closely scrutinizing criminal background checks and will likely require employers to provide some type of notice or to conduct an “individualized assessment” with applicants who report criminal convictions on their application before the employer can bar them for employment.  The EEOC hopes that through this “assessment” the employer can then effectively evaluate whether an exclusion based on the conviction is job related and consistent with business necessity.  The EEOC’s revised guidelines are expected by the end of this month.

Accordingly, by being mindful of workplace violence issues and the potential for liability from OSHA and other federal agencies, employers must be prepared to implement thorough and comprehensive policies and procedures designed to prevent workplace violence.  Part and parcel of any prevention plan is a legally enforceable background check policy and a well-trained Human Resources staff to avoid running afoul of any federal or state discrimination law.