On September 8, 2011, OSHA issued a compliance directive (the "Directive") on workplace violence that outlines enforcement procedures for OSHA field officers in determining whether and how to investigate employers for instances of alleged workplace violence. Relying on OSHA's General Duty Clause (which requires employers to maintain workplaces "free from recognized hazards that are causing or are likely to cause death or serious physical harm"), OSHA may cite and fine employers for failing to provide workers with adequate safeguards against workplace violence after an investigation. The Directive does not require OSHA to respond to every complaint or incident related to workplace violence; rather, the Directive provides guidance for field officers to determine whether or not an investigation should be pursued and whether a citation is appropriate for the employer.
The Directive marks an extensive history of OSHA examining the issues associated with workplace violence. In 1996, OSHA issued a set of guidelines for preventing workplace violence for health care and social service workers, followed by a set of recommendations for late-night retail workplaces in 1998. However, there were few citations publicized in the years after these guidelines were issued. Under the Obama administration, OSHA has issued several citations addressing workplace violence, demonstrating a heightened interest in the subject. In January 2011, OSHA cited a Maine hospital with a proposed $6,300 fine for failing to provide adequate protection against workplace violence for its employees. The hospital experienced at least 115 incidents of workplace violence between 2008 and 2010 in its psychiatric hospital and clinic. OSHA issued a serious citation on the basis that death or physical harm was likely to result from hazards which the employer knew or should have known about. In addition, OSHA cited the hospital with $5,400 in fines for other-than-serious recordkeeping violations. Employers in Massachusetts and New York faced similar citations in 2011.
The Directive identifies several broad categories of workplaces that OSHA says are prone to workplace violence, including sites where employees work with the public or volatile, unstable people, sites where employees work alone or in isolated areas, sites were employees handle money or valuables, and sites at which employees provide services and care. The Directive goes on to describe other factors that can create the likelihood of workplace violence, such as working late at night or working in areas with high crime rates.
OSHA's directive focuses on two primary questions to determine whether or not an investigation or citation is appropriate: (1) Did the employer recognize potential hazards in the workplace?and (2) Are there feasible means of preventing or minimizing such hazards?
Employers can take steps prior to any incidents to keep their employees safe and minimize the risk of investigations or citations by OSHA:
- Analyze potential workplace hazards.
A significant portion of the OSHA directive encourages field officers to investigate the employer's recognition of the risk for workplace violence. Employers are encouraged to conduct assessments of the risk of workplace violence at their job sites. A simple walk-through of a workplace can reveal potential workplace hazards. For example, employers should look for items such as burnt out lights in an isolated parking lot or a broken door lock.
OSHA says that employers should be aware of potential workplace hazards because of specific past incidents, characteristics of the employer's facility, or general industry-wide knowledge of the potential of workplace violence. Employers in the health care, social services, and late-night retail industries should pay particular attention to potential risks, as OSHA will likely deem these industries to be on notice of the potential for workplace violence in light of OSHA's published guidance. Employers will also be deemed to know that a workplace is prone to violence if multiple incidents of violence have occurred in the past. The directive instructs field officers to look beyond OSHA-reported events. Field officers are encouraged to evaluate workers' compensation records, insurance reports, police reports, security reports, first-aid logs, and accident logs in order to determine whether or not an employer had notice that violence was a hazard of the workplace. Additionally, employee complaints may cause OSHA to conclude that the employer knew of potential hazards at the workplace. Employers should note employees' concerns about workplace violence and analyze whether or not a complaint presents a legitimate risk that the employer should seek to remedy.
- Implement reasonable safety mechanisms.
Once an employer has completed an analysis of the potential hazards related to workplace violence, OSHA posits that the employer should take reasonable steps to implement safety mechanisms to minimize or eliminate those risks. Determine whether there are simple changes that can be made to minimize potential risks, such as adding lighting or replacing light bulbs in dimly lit areas. For workplaces in high crime areas, consider limiting access to facilities by adding locks to doors or installing security alarm systems. Employers should take care to document the potential hazards and the steps that were taken to minimize the risk of such hazards.
Employers should also consider whether or not a formal workplace violence prevention program is appropriate (Violence prevention programs are not mandated by federal law, but California, Illinois, Maine, New Jersey, New York, Oregon, Washington, and West Virginia all require various forms of such programs for all or certain kinds of employers.) Illinois law, for example, requires health care workplaces to adopt and implement a violence prevention plan which addresses potential hazards in the specific workplace. The OSHA directive outlines several items it analyzes in looking at workplace directives: a description of the potential violence, identification of those with prevention responsibilities, documented hazard assessment, a documented record-keeping system, a training program with written lesson plans and training materials, a mechanism for periodic review of the prevention program, and an identified response team. A formal violence prevention program may not be practical for all workplaces; however, employers should consider whether a simple version could be implemented in their organization.
- Train employees.
OSHA recognizes that many hazards of workplace violence cannot be completely eliminated. Employers are encouraged to implement training programs to educate employees on the known risks for workplace violence and the steps that can be taken by employees to minimize the potential for workplace violence. Employers should make employees aware of the known risks that an employer has identified in the workplace and instruct employees on the procedures and mechanisms in place to help them diminish risk and the appropriate response should an incident occur. Employers should inform employees what has been done to mitigate the risks and what mechanisms are available for reporting hazards or incidents that occur. Management and supervisors should be trained on how to effectively respond to workplace emergencies and employee complaints of workplace hazards.
- Develop record-keeping practices.
If an employer is subject to an OSHA investigation based on workplace violence, an employer's documentation will be a key factor in OSHA's determination of whether to cite and fine the employer. Employers should ensure that workers' compensation records, insurance reports, police reports, security reports, first-aid logs, and accident logs are complete and, where appropriate, match OSHA incident logs. Employers should also introduce mechanisms for ensuring that all incidents of workplace violence are properly recorded. Additionally, employers should document any analysis of potential workplace hazards and the steps taken to minimize the risk associated with those hazards. Records should be kept of the dates employee trainings were conducted, the individuals in attendance, and the materials used in the training. Strong documentation can be crucial in demonstrating to OSHA that an employer has taken proper steps to identify and reduce the risk of workplace violence.
- Reassess hazards periodically.
An initial evaluation and implementation of precautions to minimize the risk of workplace violence is a critical first step; however, OSHA says that employers should also periodically reassess the potential for workplace violence. Employers may consider a regularly scheduled evaluation of whether or not the mechanisms in place to reduce workplace violence are effective and whether there are other mechanisms that can be introduced to further protect employees. Trainings should be repeated periodically and updated based on any changes in procedure or risks.