Almost 2 million workers in the United States report that they have been victims of violence in their workplace each year. OSHA is focusing on workplace violence and employers need to be aware of their obligations to protect employees from known or foreseeable violent situations in the workplace.
General Duty Clause
OSHA (a division of the U.S. Department of Labor) issues specific regulations (“Standards”) concerning employer obligations for workplace safety. Employers can be cited by OSHA for violating these Standards. Section 5(a)(1) of OSHA, known as the “General Duty Clause” requires employers to keep their workplaces “free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.” The General Duty Clause is a catch-all clause which OSHA can use when there is no specific Standard prohibiting an employer’s omissions with respect to workplace safety.
No OSHA Standard currently exists on workplace violence. Therefore, unless the DOL issues regulations, OSHA has to rely on the General Duty Clause to enforce employer obligations regarding workplace violence prevention. For the first time, OSHA has cited an employer for an employee death which occurred while the employee was working.
Integra Health Management, Inc.
In March 2019, the Occupational Safety and Health Review Commission (“OSHRC”) unanimously affirmed a citation issued against Integra Health Management, Inc. (“Integra”) for failing to adequately address workplace violence hazards. A social services coordinator who worked for Integra had expressed concern in her notes regarding a male client who made her uncomfortable and anxious. Integra took no action in response to these documented concerns. The client chased the female coordinator off his porch with a knife and stabbed her to death. In its citation, OSHA alleged that Integra committed a serious violation of the General Duty Clause for its failure to furnish a place of employment which was free from recognized hazards likely to cause death or serious physical harm to employees. This is the first decision where the General Duty Clause is the basis for a citation relating to workplace violence. The commissioners affirmed the citation, rejecting Integra’s argument that violence committed by a third party is unpredictable and unanticipated.
In this era of increased gun violence and use of force by disgruntled employees to retaliate against their employers, this case is a reminder that employers must take workplace violence seriously and be aware of violent hazards which may exist for their employees.
The Secretary of Labor has issued a number of recommendations for reducing workplace violence hazards. Among the recommendations are:
- Employers should have a separate workplace violence prevention program with mandatory reporting obligations.
- Employers should identify customers and clients with predictable histories or situations where an employee could be exposed to violence.
- Where a person, customer, client or other situation could pose a safety risk for employees relating to violence, the employer should inform the employees of this possibility and create procedures for reducing the risk.
- If appropriate, employees should be provided with a means to summons assistance when needed, such as cell phones.
- Investigate all violent incidents and threats, track trends in violent incidents and, when necessary, institute corrective actions.
- Educate employees as to how to react to violent situations and promote sharing of information by employees who have been exposed to potential violent situations.
- Analyze the potential for violence in your workplace.
It is expected that the Secretary of Labor will eventually issue a specific standard regarding workplace violence. Until then, OSHA can use the General Duty Standard. Employers in high risk industries or employers in industries where employees may be exposed to potential violence while working, such as encountering third parties who pose a risk of violence, need to take precautions and educate employees to reduce the risk of injury or death from a violent incident. Employers should be aware that OSHA is increasing its focus on workplace violence.