OSHA issues new rules on investigating workplace violence

by Thomas A. Farr and W. Kyle Dillard, Esqs.

The federal Occupational Safety and Health Administration (OSHA) has issued its first-ever written en­­force­­ment instructions regarding incidents of workplace violence. OSHA officials will use the directive to decide whether allegations of workplace violence warrant an investigation. It spells out procedures that compliance officers must follow when conducting workplace inspections.

More important, it details methods employers can use to minimize the possibility of workplace violence.

Violence defined

OSHA defines “workplace violence” as “violent acts (including physical assaults and threats of assaults) di­­rected towards persons at work or on duty.”

The directive lists four categories of workplace violence:

  1. Violent acts by people (including current and former employees) who enter the workplace to commit a crime.
  2. Violence directed at employees by customers, clients, patients, etc.
  3. Violence against co-workers by a current or former employee
  4. Violence in the workplace by a non­­employee who has a relationship with an employee.

High-risk industries

The directive says two high-risk in­­dustries are particularly susceptible to workplace violence: health care and social service facilities and late-night retail stores. Among the key risk factors for workplace violence:

  • Working with unstable or volatile persons in health care, social serv­ices or criminal justice settings
  • Working alone or in small numbers
  • Working late at night or during early morning hours
  • Working in high crime areas
  • Guarding valuable property
  • Working in community-based health or drug abuse clinics
  • Exchanging money in certain financial institutions
  • Delivering passengers or goods
  • Working in mobile workplaces, such as taxicabs.

The OSHA directive says inspections are more likely in high-risk industries or workplace settings that include those risk factors.

The directive states that inspections “generally shall not be considered” based solely upon threats by co-workers, but makes clear that OSHA may refer incidents to appropriate criminal enforcement agencies, the EEOC or the National Labor Relations Board.

Inspections may be initiated following a complaint, referral, fatality or catastrophic event (resulting in hospitalization of three or more em­­ployees) involving workplace violence.

Employers also may face citations for potential workplace violence issues discovered during OSHA inspections.

Preventive controls

The directive lists potential engineering or administrative controls em­­ployers can use to minimize or eliminate workplace violence risks.

A few of the more obvious engineering controls include alarm systems, panic buttons and hand-held alarms. Other engineering controls include metal detectors, closed-circuit video monitoring, convex security mirrors at hallway intersections or concealed areas, and doors that lock (in accordance with fire codes).

Administrative controls include im­­plementing practices and procedures to reduce hazards, establishing liai­sons with local police and state prosecutors, requiring employers to report all assaults or threats, maintaining a log book of all reported assaults or threats and training employers how to re­­quest police assistance or file charges.

Advice for employers

Immediately contact your attorney following any act of violence.

To prove a violation of the law, OSHA must show that work­­place violence was a recognized hazard in the industry and that there are feasible means of abatement. How you manage a workplace violence inspection will directly affect your ability to defend against OSHA citations.

Online resource: OSHA’s new directive

Download a copy of OSHA’s new “Enforce­­ment Procedures for In­vestigating or Inspect­­ing ­Work­­place Violence Incidents” directive at http://tinyurl.com/OSHA-workplace-violence.

_______________________________________________

Authors: Thomas A. Farr is a shareholder in Ogletree Deakins’ Raleigh, N.C., office. W. Kyle Dillard is a shareholder in Ogletree Deakins’ Greenville, S.C., office.

Violence prevention steps you should take

The OSHA directive advises employers to develop a written workplace violence prevention program that includes these measures:

  • Adopt a policy statement regarding potential violence in the workplace that assigns oversight and prevention responsibilities.
  • Conduct regular a workplace violence hazard assessment and security analysis.
  • Implement a record-keeping system designed to report any violent incidents.
  • Train employees on the company’s workplace violence program.
  • Develop procedures and assign roles in the event of a violent incident.
  • Develop a response team to provide immediate care for victims, re-establish safe work areas and conduct debriefing sessions with victims and co-workers.

OSHA recommends reviewing the violence prevention program yearly.