According to the Bureau of Labor Statistics, in 2010, 18 percent of workplace fatalities were caused by assaults and violent acts. By contrast, for the same period, 14 percent of workplace fatalities were caused by falls.
The Occupational Safety and Health Administration (OSHA) has recently taken steps to focus enforcement on the issue of workplace violence, with a September 8, 2011 directive detailing procedures for inspections on this issue. See http://www.osha.gov/OshDoc/Directive_pdf/CPL_02- 01-052.pdf. This is OSHA’s first directive on the topic, and while intended for OSHA inspectors, it provides employers with insight into OSHA’s approach to enforcement on this potential hazard.
OSHA has no specific standard on the issue of workplace violence, and instead cites employers for workplace violence hazards under the Occupational Safety and Health Act’s General Duty Clause. To establish a violation of the General Duty Clause, OSHA must show (1) a workplace hazard exists; (2) either the employer or the employer’s industry recognized the hazard; (3) the hazard is likely to cause serious injury or death; and (4) there is a feasible and useful way for the employer to abate the hazard.
- Existence of a Workplace Hazard. The new directive’s examples of what could establish the first required element of a General Duty Clause violation—that a workplace hazard exists— include the following: (1) injury and illness records, injury reports, medical records or workers’ compensation reports documenting injuries from workplace violence; (2) past complaints or grievances noting the hazard of workplace violence; and (3) meeting minutes where workplace violence issues were discussed.
- Employer or Industry Recognition. The directive’s examples of what could establish the second element of a General Duty Clause violation—employer or industry recognition—include (1) documentation from industry groups identifying the problem of workplace violence; (2) articles and research showing the existence of workplace violence in the given industry; (3) National Institute for Occupational Safety and Health (NIOSH) and OSHA publications; (4) documentation of employee complaints on the issue; (5) employer awareness of prior similar incidents; (6) precautions taken by the employer to prevent or minimize workplace violence, including a security plan, training plan or preventative plan; and (7) employee and management interviews.
- Likely to Cause Serious Injury or Death. Regarding the third element—that the hazard is likely to cause serious injury or death—inspectors will look to employee interviews, injury and illness logs, and police reports for evidence that employees were threatened with physical harm or suffered serious injury or death as a result of workplace violence.
- Feasibility of Abatement. For the fourth element—feasibility of abatement—the directive attaches a detailed list of “Potential Abatement Methods” as examples of potentially feasible abatement methods. The measures described include hazard analyses, engineering controls, administrative controls and a written program.
Under the new directive, OSHA clarifies that an inspection generally will not be undertaken in response to coworker or personal threats of violence. Rather, the directive sets forth the two most likely scenarios triggering an OSHA inspection of workplace violence: (1) there has been a complaint, referral, fatality or catastrophic event relating to workplace violence; or (2) there is a planned programmed inspection at a worksite that is in an industry with a high incidence of workplace violence. With respect to industries with a high risk of violence, OSHA has identified those businesses in the healthcare and social service settings, such as psychiatric facilities, hospital emergency departments, pharmacies and drug abuse treatment clinics, as well as those businesses in the late-night retail setting, such as convenience stores, liquor stores and gas stations. OSHA further identifies certain “risk factors” in these industries, such as working with unstable or volatile persons, working alone or in small numbers, working at off-peak times, working in high-crime areas, guarding valuable property, exchanging money in certain financial institutions and delivering passengers, goods or services.
If a workplace violence inspection does occur, employers can expect the OSHA inspectors to request information on any hazard assessments performed, incident investigations concerning any issues of workplace violence and documentation reflecting or evincing a workplace violence prevention program. The OSHA inspector will also review the employer’s OSHA Form 300 injury and illness records for the past five years to identify the number of recordable injuries associated with workplace violence, and compare those records with workers’ compensation records, police reports and firstaid reports to determine if other incidents of workplace violence occurred but went undocumented.
The directive makes clear that where the inspection reveals an existing hazard of workplace violence that is likely to cause death or physical harm and is recognized by either the individual employer or the industry in which it operates, citations will be issued if the employer failed to take reasonable steps to address the hazard. Employers should continue to evaluate whether workplace violence is a potential hazard at their worksites, and consider the appropriateness and feasibility of some of the following steps to address potential hazards: a policy that communicates zero tolerance for violence and threats of violence; an avenue for the reporting of threats and concerns of violence; prompt response to any incidents of violence with documented investigation and disciplinary action when appropriate; appropriate security precautions; and appropriate emergency response procedures.