Assaults and homicide were the third leading cause of on-the-job fatalities in 2010 and have consistently been among the top four causes since 1992.  The general duty clause of the Occupational Safety and Health Act requires employers to provide workplaces that are "free from recognized hazards that are causing or are likely to cause death or serious harm."

Effective September 8, 2011, the Occupational Safety and Health Administration (OSHA) issued its first compliance directive to establish general policy guidance and procedures for field offices to apply when conducting inspections in response to incidents of workplace violence, significantly revamping its previous policy.  A copy of the compliance manual may be found on OSHA's website: http://www.osha.gov.

Under this new directive, employers may now be found to violate the general duty clause if there is a failure to reduce or eliminate serious violence.  Employers should understand that the new directive raises the bar for employer responsibility and heightens employers' legal liability.  The manual contains a list of recommendations for employers, such as conducting a workplace violence hazard analysis, revising the physical plan of the workplace, and training employees.  In addition, it describes how employers should respond to allegations of workplace violence and aggression.  All such matters should be addressed in a formal employment policy that should be adopted and implemented.

Where there is a complaint, referral, or catastrophic event, this will prompt an OSHA workplace inspection.  Even in the absence of complaint, programmed inspections may occur for industries with a recognized potential for workplace violence such as businesses located in high-crime areas and jobs guarding valuable property.  Other enforcement targets will include psychiatric facilities, convenience stores open late at night, liquor stores open late at night and any other store open late at night with a single employee.

During an inspection, the OSHA team will inspect hazard assessments and review violent incidents.  The employer will be expected to demonstrate that it has implemented a written workplace violence prevention policy and program and that it has taken other reasonable precautions to protect employees from workplace violence.  Inspectors may review the employer's OSHA Form 300 injury and illness records for the past five years, as well as workers' compensation and insurance records, police reports, and first-aid records to determine whether the log information is correct.

This OSHA directive represents a significant change in employer responsibility that should prompt a thorough review of existing policies and formulation of new policies and procedures.