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Increased Workplace Violence and Why You Need a Plan to Address Recognized Hazards

Unfortunately, workplace shootings are on the rise as an emerging issue for employers. Even courts and judges have taken note in their judicial opinions that workplace violence is increasing. While there are, of course, different degrees of violence that employees may be exposed to at work, the incidence of a shooting is a particularly concerning type of violence.

According to the Bureau of Labor and Statistics, workplace shootings in recent years have increased by over 10%. As a result, employers should be aware of the risk and legal issues involved. Employers should also adopt a plan and policy to help employees prepare in the event a worst-case-scenario occurs.
Legal Issues for Employers
Under the Occupational Safety and Health Act of 1970, an employer has a general duty to render its workplace free from serious recognized hazards. The Act was originally motivated by a wish to cut down on the numbers of workplace deaths caused by industrial accidents and exposures, but the Act addresses many types of hazards.
According to guidelines published by the Occupational Safety and Health Administration (OSHA), employers are not strictly liable for violence in the workplace, including workplace shootings. There are no standards in OSHA that specifically require employers protect their employees against criminal acts committed by violent persons. Courts have noted that since workplace violence affects a wide range of employers, enforcing OSHA in a way that polices social behavior (including workplace shootings) would create an “extraordinary” burden on employers and enforcement agencies.
General Duty
Even though workplace violence is not specifically mentioned in OSHA, employers should not ignore the possibility that a tragedy could occur. Employers have a general duty to take actions to help minimize the risk of workplace violence from recognized hazards.
In order for an employer to violate its general duty to protect employees from workplace hazards, all four of the following must be true:
1.      The employer must fail to keep the workplace free from a hazard that employees were exposed to.
2.      The hazard is recognized.
3.      The hazard was likely to cause death or serious physical harm.
4.      There was a feasible and economically viable way to correct the hazard.
Although the OSHA recognizes that employers are not strictly liable for workplace shootings, it did publish voluntary guidelines to help employers deal with the emerging issue.
At Risk Industries
OSHA noted that certain industries are at higher risk for violence against their employees. These industries include: healthcare, social services, late-night retail establishments, and taxi or car drivers. Of course, these are not the only industries that could be affected, but employers in these industries should be particularly aware of the risk.
Additionally, some states have adopted laws that impose a higher burden on employers to prevent workplace violence. A few state laws focus specifically on at risk industries. For example, a Connecticut law requires certain healthcare providers adopt a response plan for workplace violence, and a Florida law requires convenience stores install security devices to help decrease safety issues.
Customer Negligence Claims
While employees who are victims of workplace violence will likely be required to bring a worker’s compensation claim, customers may be able to sue employers for negligence for injuries sustained because of workplace violence. Negligence is governed by state law, but a victim will need to prove that the employer owed them a duty of care and the employer breached that duty. However, an employer may be able to avoid liability by showing that the workplace violence was a superseding cause of the customer’s injury, and the violence was unforeseeable.
Five Elements of Workplace Violence Prevention
OSHA published five recommendations for employers to effectively deal with workplace violence:
1.      Management commitment and employee involvement
2.      A worksite analysis of security
3.      Hazard prevention and control
4.      Safety and health training for employees and management
5.      Record-keeping and workplace violence prevention program evaluation
Employers should update their employee handbooks to address these five recommendations. Having a plan in place could help employees be more prepared if an incident occurs. Knowing where to go, who to call, and what to do could make a huge difference for your employees.
Employers should be aware that workplace violence is an increasing phenomenon. Employers should adopt a clear policy that addresses workplace violence. Having a plan in place for employees to follow can be critical after an emergency. The policy should include procedures for notifying emergency responders, the employer, other employees, and their families. It should also address preventative measures to recognize and report potential workplace violence threats before they materialize into something more.

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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