By Brent I. Clark, Adam R. Young, and Craig B. Simonsen
Seyfarth Synopsis: OSHA has recently updated and published its enforcement procedures for occupational exposure to workplace violence. The procedures explain and lay out the elements of an OSHA General Duty Clause violation, as well as NIOSH’s guidance for determining the potential for workplace violence.
OSHA defines “workplace violence” as an act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. It ranges from threats and verbal abuse to physical assaults, or homicide. It can involve employees, clients, customers, and visitors. In addition, OSHA asserts that nearly two million American workers report being victims of workplace violence each year. According to OSHA: “unfortunately, many more cases go unreported.”
To assist the Agency and its Certified Safety and Health Official (CSHO) inspectors in assessing and citing instances of workplace violence, OSHA has recently released its updated Enforcement Procedures and Scheduling for Occupational Exposure to Workplace Violence, OSHA Directive CPL 02-01-058 (January 10, 2017). The Directive was last updated in 2011.
The Directive lays out the elements of a General Duty Clause violation, including:
- The employer failed to keep the workplace free of a hazard to which employees of that employer were exposed;
- The hazard was recognized;
- The hazard was causing or was likely to cause death or serious physical harm; and
- There was a feasible and useful method to correct the hazard.
The Directive also lists “known risk factors”, which “shall be considered in determining whether to inspect a worksite, [but which] none of them would individually trigger an inspection.” The risk factors are: contact with the public; exchange of money; delivery of passengers, goods, or services; having a mobile workplace such as a taxicab; working with persons in 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 drug rehabilitation centers and group homes.
How Can Workplace Violence Hazards be Reduced?
OSHA indicates that “in most workplaces where risk factors can be identified,” the risk of assault can be prevented or minimized if employers take appropriate precautions. It suggests that one of the best protections is a zero-tolerance policy toward workplace violence. The policy, OSHA advises, should cover all workers, patients, clients, visitors, contractors, and anyone else who may come in contact with company personnel.
By assessing worksites, employers can identify methods for reducing the likelihood of incidents occurring. “OSHA believes that a well-written and implemented workplace violence prevention program, combined with engineering controls, administrative controls and training can reduce the incidence of workplace violence in both the private sector and federal workplaces.”
Employers seeking to address this topic in the company’s employee handbook or policy documents should do so carefully, as in the event of an incident, this will be one of the first company documents requested and received by an inspector.
On the enforcement side, we note that OSHA continues to issue citations under the General Duty Clause for alleged workplace violence hazards. However, all of these citations follow one or more actual instances of violence at work. OSHA appears to be unable to gather sufficient facts during an inspection to support a citation in advance of an actual instance of workplace violence — even though OSHA’s citations allege the employer should have addressed the hazard in advance.
For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team or the Workplace Counseling & Solutions Team.