On March 14, 2023, Utah Governor Spencer J. Cox signed HB 324 into law amending Utah’s protective order statute to allow employers to petition for and obtain workplace violence protective orders against an individual who has engaged in or threatened potential workplace violence. The law will become effective on July 1, 2023.
Employers Have a Legal Duty to Provide a Safe Workplace
As an initial matter, the federal Occupational Safety and Health Act and Utah’s Occupational Safety and Health Act require covered employers to provide a safe workplace, free from recognized hazards that cause or are likely to cause death or serious physical harm to employees. According to the Occupational Safety and Health Administration (OSHA), the federal agency charged with enforcing the federal law, this includes taking reasonable steps to prevent or abate a recognized violence hazard in the workplace. OSHA has defined workplace violence as any act or threat of physical violence, harassment, intimidation, or other threatening or disruptive behavior that occurs at a work site. This includes verbal threats as well as physical acts and can involve employees, customers, vendors, and visitors.
HB 324 does not modify the employer’s duty to provide a safe workplace, but rather provides another tool for employers to address this major concern for employers and employees.
What Constitutes Workplace Violence Under the New Law?
Under the new statute, workplace violence is defined as “knowingly causing or threatening to cause bodily injury to, or significant damage to the property of” an employer or employee performing their duties as an employee. The law specifies that for purposes of obtaining a restraining order, the employer must prove that an action or threat of workplace violence has occurred by showing the underlying events giving rise to the petition cause “a reasonable person to feel terrorized, frightened, intimidated, or harassed.” In the case of a threat, it must also cause a reasonable person “to fear that the threat will be carried out.” The law expressly states that it does not prohibit a person from engaging in constitutionally protected exercise of free speech, including non-threatening speech and speech involving labor disputes concerning organized labor, or prohibit a person from engaging in an activity that is part of a labor dispute.
Seeking a Workplace Violence Protective Order
HB 324 permits an employer or an authorized agent of the employer to petition for a protective order if the employer reasonably believes workplace violence has occurred against the employer or an employee. This mechanism was not previously available to employers under Utah law. If the employer petitions for a workplace violence protective order and has knowledge that a specific individual is the target of workplace violence, the employer must make a good-faith effort to notify the targeted employee that the employer is seeking a workplace violence protective order.
The law allows courts to immediately, and without notice, enter an ex parte workplace violence protective order, if necessary, to protect the petitioner or any party named in the petition. Otherwise, workplace violence protective orders should be issued upon notice to the party against whom the order is being sought and a hearing. If the protective order is issued ex parte, the court must hold a hearing on the petition within 21 days of issuance of the protective order unless certain exceptions are met. A workplace violence protective order issued after notice and a hearing will be in effect as long as the court determines is necessary to protect the individual, but cannot exceed 18 months unless it is extended as outlined in the statute.
Protections Afforded with a Workplace Violence Protective Order
The court may grant any of the following relief with a workplace violence protective order:
- Enjoin the perpetrator from committing workplace violence.
- Enjoin the perpetrator from threatening the employer or employee of the petitioner while performing the employee’s duties.
- Order the perpetrator to stay away from the petitioner’s workplace.
Of importance, the protective order must be narrowly tailored to the location where the perpetrator caused or threatened to cause bodily injury to, or significant damage to the property of, the employer or an employee.
Violating a workplace violence protective order is a class A misdemeanor.
The law also provides certain liability protections for employers. Specifically, an employer is immune from civil liability for (1) seeking a workplace violence protective order “if the employer acts in good faith in seeking the order; or (2) for failing to seek a workplace violence protective order.”
Practical Considerations for Employers
By creating a workplace violence protective order, Utah lawmakers have provided employers with another option to assist them in providing safe workplaces for their employees. Employers should maintain open lines of communication when addressing legitimate concerns and fears employees may have related to workplace violence. After addressing any imminent emergencies, employers should seek the assistance of counsel as part of their overall threat assessment response to the situation. This frequently includes working closely with outside counsel, the use of an internal crisis response team, and use of outside threat assessment experts. Again, the new law provides an addition option for an employer to utilize as part of its overall response to violence or threats of violence in their workplace or for assistance in obtaining a workplace violence protective order to help minimize risk and potential liability concerns.