Member Article

As a result of OSHA’s recently issued directive on workplace violence, the cops may not be alone in investigating incidents of workplace violence. OSHA is now in the business of policing workplace violence.

In the directive, entitled Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents, OSHA provides its inspectors guidance on their new role – conducting inspections and investigations involving on-the-job violence.

The directive lays out two primary reasons to conduct an OSHA inspection concerning workplace violence. First, an inspection “shall be considered where there is a complaint, referral, or fatality and/or catastrophic event” involving a violent act at the business. Second, a programmed inspection shall be considered when an employer is part of an industry with a recognized potential for workplace violence (such as healthcare, social service settings and certain retail establishments). Further, the directive suggests that a workplace violence inspection should be considered during other programmed inspections, such as businesses under a national emphasis program or those selected for inspection based on their injury/illness rates, where there is recognition of the potential for workplace violence in that industry.

The directive focuses on violence by outsiders who enter the workplace to commit a crime (i.e., a robbery) as well as violence directed at employees by customers, clients, patients, students, or others to whom the employer provides a service. However, an inspection “generally shall not be considered in response to coworker or personal threats of violence,” according to the directive.

The directive identifies several “known” risk factors for inspectors to evaluate in initiating inspections. They include:

• Working with unstable or volatile persons in certain healthcare, social service 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 or possessions;
• Working in community-based settings, such as community mental health clinics, drug abuse treatment clinics, pharmacies, community-care facilities and long-term care facilities;
• Exchanging money in certain financial institutions;
• Delivering passengers, goods or services; and
• Having a mobile workplace such as a taxicab.

Since there is not a specific standard addressing workplace violence, OSHA intends to primarily rely on Section 5(a)(1) of the Occupational Safety and Health Act – the General Duty Clause – to cite employers under the new directive. The General Duty Clause allows OSHA to hold employers accountable for “recognized” hazards not covered by a specific standard. In addition to citations under the General Duty Clause, OSHA directed inspectors to apply the following standards when applicable: 29 C.F.R. § 1904 Recording and Reporting Occupational Injuries and Illnesses; 29 C.F.R. § 1910.151 Medical Services and First Aid; 29 C.F.R. § 1926.23 First Aid and Medical Attention; and 29 C.F.R. § 1926.35 Employee Emergency Action Plans.

Through this new directive, OSHA is attempting to establish an employer’s general duty to protect against workplace violence. Indeed, OSHA suggests that if the hazard of workplace violence exists then an employer should conduct an assessment and implement a “Workplace Violence Prevention Program.” The practical result of this directive is that employers may now be held responsible for the erratic and often unpredictable actions of others. Accordingly, OSHA’s new and expanded enforcement into workplace violence will likely result in additional exposure for businesses, which already face civil liability and sometimes criminal penalties when an incident occurs.

If you have any questions please visit the Haynes and Boone Occupational Safety and Health Act Practice page of our website or contact one of the lawyers listed below.