By James L. Curtis and Craig B. Simonsen

iStock_000041284206_MediumSeyfarth Synopsis: DHS’s recommendations for active shooter prevention and preparedness is only one piece of an effective workplace violence prevention program. Employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

With the wave of violence that has gripped the nation this summer, many clients are again asking how best to protect their employees. We had blogged previously about “Workplace Violence Prevention: DHS Promotes “Active Shooter Preparedness” Programs – Is Your Company Ready?” This blog includes an update on this important topic.

The Bureau of Labor Statistics has said in a news release that the number of workplace homicides in 2014 (409) was about the same as the total in 2013. Among the workplace homicides in which women were the victims, the greatest share of assailants were relatives or domestic partners (32 percent of those homicides). In workplace homicides involving men, robbers were the most common type of assailant (33 percent).

The National Institute for Occupational Safety and Health (NIOSH) reports that the magnitude of workplace violence in the U.S. is measured with fatal and nonfatal statistics from several sources. The Bureau of Labor Statistics’ Census of Fatal Occupational Injuries reported 14,770 workplace homicide victims between 1992 and 2012. From 2003 to 2012 over half of the workplace homicides occurred within three occupation classifications: sales and related occupations (28%), protective service occupations (17%), and transportation and material moving occupations (13%).

In response to workplace violence events the DHS had issued its “Active Shooter Preparedness Program.” The Program was intended to enhance preparedness through a “whole community” approach by providing training, products, and resources to a broad range of stakeholders on issues such as “active shooter awareness, incident response, and workplace violence.” The DHS has found that in many cases, “there is no pattern or method to the selection of victims by an active shooter, and these situations are, by their very nature, unpredictable and evolve quickly.”

In key Active Shooter Preparedness research, it was found that in 160 Active Shooter incidents that occurred between 2000 and 2013, the incidents occurred most frequently in areas of commerce (46 %), followed by educational environments (24 %), and government properties (10 %). The materials indicate that an effective active shooter plan will include the following:

  • Proactive steps that can be taken by facility tenants to identify individuals who may be on a trajectory to commit a violent act.
  • A preferred method for reporting active shooter incidents, including informing all those at the facility or who may be entering the facility.
  • How to neutralize the threat and achieve life safety objectives.
  • Evacuation, shelter-in-place, hide, and lockdown policies and procedures for individual offices and buildings.
  • Integration with the facility incident commander and the external incident commander.
  • Information concerning local area emergency response agencies and hospitals (i.e., name, telephone number, and distance from the location), including internal phone numbers and contacts.
  • How operations will be restored.

DHS suggests that after company or facility specific policy and procedures, including an active shooter plan are finalized, training and exercises should occur, with drills and exercises at least annually.

As we noted in our previous blog, employers should review the DHS’s recommendations for active shooter prevention and preparedness and update their policies and practices as appropriate. Of course, active shooter training and policies are only one piece of an effective workplace violence prevention program.  All employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By Adam R. Young and Craig B. Simonsen

Violence, often involving firearms, is an increasingly common occurrence in the 21st century workplace.  The Federal Bureau of Investigation notes that even though homicide is “the most publicized form of violence in the workplace, it is not the most common.”

The FBI defines workplace violence as “any physical assault, threatening behavior or verbal abuse occurring in the work setting.” While some types of these acts “may not be interpreted immediately as violence … many people will witness them in their lifetimes.”

The FBI warns that it is “vital that employers create a sense of hypervigilance in their employees by providing formal training in workplace violence prevention.” To help employers prevent workplace violence, the U.S. Department of Homeland Security (DHS) has recently released an “Active Shooter Preparedness” website intended to make training and other resources available to employers.

Of particular interest are the Active Shooter Webinar materials, including a ninety minute Webinar that the DHS has provided for the private and public sector to “understand the importance of developing an emergency response plan and the need to train employees on how to respond if confronted with an active shooter.” Emphasis added. These Webinar materials include specific tools designed to aid employers in creating and updating policies and procedures to prevent and respond to active shooter scenarios.

Issues covered in the materials include the following:

  • Profile of an active shooter;
  • Responding to an active shooter or other workplace violence situation;
  • Training for an active shooter situation and creating an emergency action plan; and
  • Tips for recognizing signs of potential workplace violence.

The materials include a desk reference guide, a reference poster, and a pocket-size reference card.

By utilizing these materials, employers may help prevent harmful workplace violence incidents. Conflict resolution training and employee assistance programs can help reduce the likelihood of workplace violence and active shooter scenarios.  Employee training and emergency preparedness can help minimize the harm from incidents and ensure that employees safely exit the workplace.

These measures also will help insulate employers from negligence claims alleging a failure to maintain a safe work environment for employees. Consider also that under the Occupational Safety and Health Act, employers must protect employees from known hazards in the workplace.  Employers who fail to implement measures to prevent workplace violence may face citations and increasingly aggressive OSHA enforcement actions.

Accordingly, employers should review DHS’s recommendations for active shooter prevention and preparedness and update their policies and practices as appropriate. Of course, active shooter training and policies are only one piece of an effective workplace violence prevention program.  All employers should assess their workplaces and develop comprehensive workplace violence prevention programs and training.

By Brent I. Clark and Craig B. Simonsen

shutterstock_65596348OSHA announced on December 1, 2015, that it had issued a number of “strategies and tools” for preventing workplace violence in the healthcare setting.

The strategies and tools were contained in a new webpage, “Preventing Workplace Violence in Healthcare.” The Agency indicates that the new webpage is part of OSHA’s Worker Safety in Hospitals website, which “complements” its updated “Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers,” that we blogged about earlier this year when it was published.

The new webpage includes “real-life examples from healthcare organizations that have incorporated successful workplace violence prevention programs,” and “models of how a workplace violence prevention program can complement and enhance an organization’s strategies for compliance and a culture of safety.”

OSHA concluded that from 2002 to 2013, incidents of serious workplace violence were “four times more common in healthcare than in private industry on average,” according to Bureau of Labor Statistics data. OSHA had indicated previously, with the new Guidelines, that the Bureau of Labor Statistics reported for 2013 that over 23,000 significant workplace injuries were due to violent assault at work, with more than seventy percent (70%) of these assaults being in the healthcare and social service settings.

OSHA believes that this new webpage “addresses this issue by providing hospital administrators with information on the risk factors, associated costs and actions that can be taken to manage the problem.” The webpage along with the Guidelines include what OSHA believes to be “industry best practices,” and provides direction on ways to reduce the risk of violence in various healthcare and social service settings.

Importantly for employers in these industries is that the webpage and the Guidelines stress the importance of developing a written workplace violence prevention program. The Guidelines state that a workplace program should include management commitment and employee participation, worksite analysis, hazard prevention and control, safety and health training, and recordkeeping and program evaluation. OSHA provided a checklist for employers to use when developing their written programs.

Employers in healthcare and social service settings can use OSHA’s recent updates as an opportunity to review their own workplace violence programs and to update those programs as appropriate. At a minimum, employers should ensure that they have a written program in place that hits all of the areas highlighted by OSHA in these materials. That step will help improve workplace safety and greatly reduce the likelihood of receiving a citation should OSHA conduct an onsite inspection. OSHA is currently enforcing alleged workplace hazards under the General Duty Clause which is section 5(a)(1) of the of the OSH Act.

By Mark A. Lies, II and Craig B. Simonsen

shutterstock_171692768Employers today can find themselves in a seemingly untenable dilemma when they have violence threaten to invade their workplaces. Two recent cases illustrate the competing liabilities that employers face in their decision-making as to how to respond to workplace violence.

In one case, decided by the United States Court of Appeals for the Ninth Circuit, the employer, a superalloys casting company, chose to fire an openly hostile employee making death threats to avoid potential injury to its employees, and face the prospect of costly litigation including an Americans with Disabilities Act (ADA) lawsuit.

In the other case, decided by an Occupational Safety and Health Review Commission (OSHRC) Administrative Law Judge, a healthcare company did not perceive or protect a social service coordinator, who was tragically fatally stabbed outside the client’s home, from the hazard of workplace violence.

Employer Response to Violence Upheld

In the first case the plaintiff appealed from the Federal District Court’s grant of summary judgment in favor of his former employer on his claim of discrimination in violation of Oregon disability law. Mayo v, PCC Structurals, Inc., No. 13-35643 (9th Cir. July 28, 2015) (Mayo).

The District Court concluded that because the plaintiff, Timothy Mayo, had threatened to kill his co-workers, including his supervisor, he was not a “qualified individual” under section 659A.112 of the Oregon Revised Statutes, which is Oregon’s counterpart to the Americans with Disabilities Act (ADA). The District Court indicated that in following the decisions of numerous other Circuit Courts, Mayo was no longer a “qualified individual” once he made his “violent threats.” Because Mayo was not a qualified individual in the eyes of the court, he was not “entitled to protection under the ADA and Oregon’s disability discrimination statute.”

In its discussion affirming the lower court decision, the Circuit Court of Appeals found that even if the plaintiff were disabled (which it assumed was true for the appeal), “he cannot show that he was qualified at the time of his discharge. An essential function of almost every job is the ability to appropriately handle stress and interact with others.” For instance, in a frightening recitation of the court record, the plaintiff told a co-worker that he “‘fe[lt] like coming down [to work] with a shotgun an[d] blowing off’ the heads of the supervisor and another manager. The co-worker need not worry, Mayo explained, because she would not be working the shift when the killing would occur.”

After these statements were reported to company management a timely investigation was conducted. Written statements were obtained from co-employees regarding the threats. When the plaintiff was asked by management if he planned to carry out these threats, the plaintiff responded that “he couldn’t guarantee he wouldn’t do that.” The company management immediately suspended the plaintiff’s employment, barred him from company property, and notified the police.

After the plaintiff’s suspension and being interviewed by the police, he was voluntarily admitted to the hospital because he was deemed to pose a danger to himself and to others. He remained in custody for six days, and then took a leave under the Oregon Family Leave Act (OFLA) and the Family and Medical Leave Act (FMLA) for two months. Near the end of his leave period, a treating psychologist cleared him to return to work, writing that he was not a “violent person,” but recommended a new supervisor assignment. While the parties dispute the timing, the employer decided to terminate the plaintiff during his medical leave. The company determined that his threats were of such severity that he was unqualified to work with any supervisors or co-employees and that it could not expose its employees to potential workplace injury.

In response the plaintiff brought this case, seeking damages. The District Court granted the employer’s motion for summary judgment, and the Circuit Court of Appeals affirmed.

Employer Response to Threatening Conduct Found Inadequate

In the second case, an Occupational Safety and Health Review Commission (OSHRC) Administrative Law Judge, Dennis L. Phillips, issued an opinion that a healthcare company did not protect a social service coordinator, who was fatally stabbed outside her client’s home in December 2012. Secretary of Labor v. Integra Health Management, Inc., OSHRC No. 13-1124 (June 22, 2015) (Integra).

The employer in this case, Integra Health Management, Inc. (Integra), provided mental and physical health assessments and coordinated healthcare/case management services for insureds of insurance companies. One of its employees was a 25 year old newly- hired Service Coordinator (SC) with about three months on the job. The employee had no prior experience in the community health or social worker industries. The employee did not have an office at the company but instead worked out of her home. She also used her computer, a phone, and car to travel to client’s homes.

In October 2012, the employee planned to drive out into the field to a client’s apartment, to make an unscheduled visit. The client was a diagnosed schizophrenic, who was on the employee’s list of clients, known as “members,” for which she was responsible. The client had a history of violent behavior, and had been convicted of violent crimes and incarcerated for many years. The employee was not advised about the client’s history of mental illness or violent behavior when he was assigned to her. The employee had made several attempts to contact the client by telephone, which were unsuccessful.

As planned, the employee visited the client in October 2012 by going to his house unannounced. She introduced herself and the company and arranged a return visit to conduct an initial assessment. The employee reported in her progress note report for that day that during their conversation, the client “said a few things that made [her] uncomfortable, [she] asked [the client] to be respectful or she would not be able to work with him.” She also documented in her progress note report that “[b]ecause of this situation, [she] is not comfortable being inside alone with [the client] and will either sit outside to complete assessment or ask another SC to accompany her.”

A number of subsequent meetings and conversations occurred between the employee and the client including further notes in the employee’s progress note report regarding her concerns. In December 2012, the employee was fatally stabbed by the client during her visit to his home.

Following the incident the Occupational Safety and Health Administration (OSHA) issued two citations to Integra Health Management, Inc., claiming a violation of the General Duty Clause, section 5(a)(1), of the OSH Act, and a violation of OSHA’s injury reporting standard. Specifically, the General Duty Clause citation alleged that the employer did not furnish employment and a place of employment which were free from recognized hazards that were causing or likely to cause death or serious physical harm to employees, in that employees were exposed to the hazard of being physically assaulted by clients with a history of violent behavior.

The Judge determined that the employer’s workplace violence policy was inadequate, that the employee training was insufficient, that the employer failed to provide the employee with information about the medical background of the client, as well as the criminal history. More importantly, the Judge determined that the employer did not monitor the employee’s progress notes which identified her concerns about the client and did not take affirmative action to assist her when she indicated her continuing anxiety about their interactions.

What are the Legal Ramifications that Employers Should Consider?

In Mayo the employer took steps to protect its employees from threatened harm by conducting a timely investigation, suspending and eventually terminating the aggressive and threatening employee. The company’s actions forced it to respond to discrimination claims under the ADA that initially were filed in state court, and removed to federal court. While the employer prevailed in the District Court and Circuit Court, the company undoubtedly spent considerable sums defending the suits. While this litigation was very time consuming and expensive, the employer avoided a tragic outcome.

Unfortunately in Integra the employer did not respond to or take any actions to address any sense of fear or anxiety mentioned in the employee’s client visit notes. A serious OSHA violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. The Judge found that the healthcare company’s approach to safety was inadequate, and that the company should have taken precautions to prevent injury by developing a meaningful written policy, hiring and training its employees appropriately and responding to complaints in a timely manner. While the company only faced an OSHA fine of $7,000 in proposed penalties for the General Duty Clause violation, it sustained the tragic loss of an employee, as well as a worker’s compensation death suit.

Recent OSHA Guidance

The Mayo decision may give some sense of security to those employers that make hard choices for what it believes are the right reasons, that is, for employee safety. But choices are not always easy, and the resulting actions can be costly.

The Integra decision is timely in view of another recent OSHA action relating to the healthcare industry. Recently OSHA released an “Inspection Guidance for Inpatient Healthcare Settings,” that will focus its inspectors attention to workplace violence, musculoskeletal disorders, bloodborne pathogens, tuberculosis, and slips, trips, and falls. The Guidance focuses on hazards that were included in OSHA’s recently-concluded National Emphasis Program on Nursing and Residential Care Facilities, CPL 03-00-016.

Particularly, the Guidance indicates that workplace violence is defined as violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty. OSHA notes that workplace violence is a recognized hazard in hospitals, and in nursing and residential care facilities. According to OSHA, in the healthcare and social assistance sector, 13 percent of the injuries and illnesses were the result of violence. “Fifteen percent of the days-away-from-work cases for nursing assistants were the result of violence.” Accordingly, workplace violence will be evaluated in every inpatient healthcare OSHA inspection.

While the inspection Guidance is for “inpatient” healthcare settings, employers in other industries can be certain that they will also be inspected by the same OSHA inspectors as healthcare workplace violence incidents occur, regardless of the setting, including non-healthcare workplaces as well. The Guidance was effective immediately. The Guidance noted that “because these hazards are nationwide, State Plans are expected to follow the guidance.”

Healthcare employers should take heed of this healthcare industry OSHA decision and the related Guidance. Special attention should be taken to update your policies, procedures, and training systems to include these topics in order to be inspection ready.

Recommendations

Against this potential liability scenario, an employer must develop an effective written workplace violence policy which must be communicated to all employees if it hopes to have any defense against these potential claims and to prevent a tragic incident. At a minimum, the written workplace violence prevention policy should include the following elements:

  • Stated management commitment to protecting employees against the hazards of workplace violence, including both physical acts and verbal threats;
  • Statement that the employer has a “zero tolerance” policy toward threats or acts of violence and will take appropriate disciplinary action against employees who engage in such conduct;
  • Identify means and methods for employees to notify the employer of perceived threats of violent acts in a confidential manner;
  • Establish a means to promptly investigate all such threats or violent acts;
  • Develop consistent, firm discipline for violations of the policy;
  • Provide training for managers and employees to identify signs and symptoms of employee behavior which may predict potential violence (erratic behavior; employee comments regarding homicide or suicide; provocative communications; disobedience of policies and procedures; presence of alcohol, drugs or weapons on the worksite; physical evidence of employee abuse of alcohol or drug use) which should be reported immediately to the employer;
  • Establish a team of qualified individuals (e.g., human resources; risk managers; legal; medical; security) either within the company or readily available third parties, to respond to a potential or actual incident; and
  • Consider establishing an Employee Assistance Plan (EAP) to provide assistance to employees who may be experiencing mental or emotional stress before an act of violence occurs.

If you have any questions regarding this article, please contact any of the authors, or your Seyfarth attorney.

By Mark A. Lies, II and Craig B. Simonsen

shutterstock_171692768An Occupational Safety and Health Review Commission Administrative Law Judge has determined that a healthcare provider company did not protect a social service coordinator, who was fatally stabbed outside her client’s home in December 2012.

According to the OSHA news release, the healthcare client had severe mental illness and a violent criminal history. The social service coordinator was on-the-job for approximately three months. The employee “had prior meetings with the man and recorded in her case notes that she was uncomfortable being alone with him.”

While the Judge’s decision is not yet available, the release indicated that a social service coordinator visited dangerous and violent clients in their homes and coordinated case management. To perform mental and physical health assessments, they would sometimes transport clients in their vehicle.

OSHA’s citation, including $10,500 in proposed penalties, indicated that a serious safety violation was issued for exposing employees to incidents of violent behavior by a patient that resulted in death. “A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known.” The Judge found that the healthcare company’s approach to safety was inadequate, and that the company should have taken “precautions to prevent injury by hiring and training its employees appropriately.”

This decision is very timely in view of another recent OSHA action relating to the healthcare industry. Last month released an “Inspection Guidance for Inpatient Healthcare Settings,” that will focus its inspectors attention to workplace violence, musculoskeletal disorders, bloodborne pathogens, tuberculosis, and slips, trips, and falls. The Guidance focuses on hazards that were included in OSHA’s recently-concluded National Emphasis Program on Nursing and Residential Care Facilities, CPL 03-00-016.

Particularly, the Guidance indicates that workplace violence (WPV) is defined as violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty. OSHA notes that WPV is a recognized hazard in hospitals, and in nursing and residential care facilities. According to OSHA, in the healthcare and social assistance sector, 13 percent of the injuries and illnesses were the result of violence. “Fifteen percent of the days-away-from-work cases for nursing assistants were the result of violence.” Accordingly, WPV will be evaluated in every inpatient healthcare OSHA inspection.

While the inspection Guidance is for “inpatient” healthcare settings, employers may be certain that they will also be inspected by OSHA inspectors as healthcare WPV incidents occur, regardless of the setting. The Guidance is effective immediately. The Guidance noted that “because these hazards are nationwide, State Plans are expected to follow the guidance.”

Healthcare employers should take heed of this healthcare industry OSHA decision and the related Guidance. Special attention should be taken to update your policies, procedures, and training systems to include these topics in order to be inspection ready.

By James L. Curtis and Craig B. Simonsen

shutterstock_58920859OSHA has released an “Inspection Guidance for Inpatient Healthcare Settings,” that will focus its inspectors attention to musculoskeletal disorders, workplace violence, bloodborne pathogens, tuberculosis, and slips, trips, and falls.

The Guidance focuses on hazards that were included in OSHA’s recently-concluded National Emphasis Program on Nursing and Residential Care Facilities, CPL 03-00-016. OSHA’s Administrator, Dr. David Michaels, commented on the Guidance that “workers who take care of us when we are sick or hurt should not be at such high risk for injuries — that simply is not right.” “The most recent statistics tell us that almost half of all reported injuries in the healthcare industry were attributed to overexertion and related tasks. Nurses and nursing assistants each accounted for a substantial share of this total.”

As noted above, the Guidance main focus areas include musculoskeletal disorders (MSDs), workplace violence (WPV), bloodborne pathogens (BBP) and tuberculosis (TB), and slips, trips, and falls (STFs).

Musculoskeletal Disorders and Overexertion

According to OSHA, the Bureau of Labor Statistics data for 2013 show that 44 percent of reported injuries within the healthcare industry were attributed to overexertion-related incidents. The Guidance remarks that the rate “equates to almost one and a half times the total MSD rate (33 percent) for all reported injuries for all industries.” Nurses and nursing assistants accounted for a substantial share of the total. Accordingly, MSDs will be a substantial focus of OSHA’s inspections.

Workplace Violence

Workplace Violence is defined as violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty. OSHA notes that WPV is a recognized hazard in hospitals, and in nursing and residential care facilities. According to OSHA, in the healthcare and social assistance sector, 13 percent of the injuries and illnesses were the result of violence. “Fifteen percent of the days-away-from-work cases for nursing assistants were the result of violence.” Accordingly, WPV will be evaluated in every inpatient healthcare OSHA inspection.

Bloodborne Pathogens and Tuberculosis

OSHA’s enforcement data indicated that 29 CFR 1910.1030, the Bloodborne Pathogens Standard, is one of the most frequently cited standards in nursing and residential care facilities. Additionally, employees working in nursing and residential care facilities have been identified by the Centers for Disease Control and Prevention as having the highest risk for exposure to TB due to the case rate of disease among persons 65 years of age. Accordingly, BBP and TB will continue to receive substantial focus under the National Emphasis Program in every inpatient healthcare OSHA inspection.

Slips, Trips, and Falls

While not typically the source of serious injuries, OSHA indicates that injuries from STFs were a driving cause of occupational injury and illness cases reported in nursing and residential care facilities. “Taken together, overexertion together with slips, trips, and falls accounted for 68.6% of all reported cases with days away from work.”

Other Concerns

In addition to its focus on musculoskeletal disorders, bloodborne pathogens and tuberculosis, workplace violence, and slips, trips, and falls, the Guidance indicates that inspectors should also be watchful for:

  • Exposure to multi-drug resistant organisms (MDROs), such as Methicillin-resistant Staphylococcus aureus (MRSA).
  • Exposures to hazardous chemicals, such as sanitizers, disinfectants, anesthetic gases, and hazardous drugs.

The Guidance is effective immediately. The Guidance notes that “because these hazards are nationwide, State Plans are expected to follow the guidance.”

Healthcare employers should take heed of this Guidance. Special attention should be taken to update your policies, procedures, and training systems to include these topics. Make note, because OSHA inspectors certainly will.

By Brent I. Clark, James L. Curtis, Mark A. Lies, Meagan Newman, and Craig B. Simonsen

shutterstock_65596348In its announcement last week, OSHA noted that the Bureau of Labor Statistics reported for 2013 that over 23,000 significant injuries were due to violent assault at work, with more than seventy percent (70%) of these assaults being in the healthcare and social service settings.

OSHA concluded that healthcare and social service workers are almost “four times as likely to be injured as a result of violence than the average private sector worker.” To bring a reduction to this risk, OSHA has just released an update to its Guidelines for Preventing Workplace Violence for Healthcare and Social Service Workers. The Guidelines include what OSHA believes to be “industry best practices,” and provides direction on ways to reduce the risk of violence in various healthcare and social service settings.

These revised Guidelines, that update and broaden the reach of OSHA’s previous 1996 and 2004 Guidelines, incorporate “research in the last decade into the causes of workplace violence on healthcare and social service settings, risk factors that accompany working with patients or clients who display violent behavior, and the appropriate preventive measures that can be taken, amid the variety of settings in which health care and social service employees work.”

Importantly for employers in these industries is that the Guidelines also stress the importance of developing a written workplace violence prevention program. The Guidelines state that a workplace program should include management commitment and employee participation, worksite analysis, hazard prevention and control, safety and health training, and recordkeeping and program evaluation. OSHA provides a checklist for employers to use when developing their written programs.

Employers in healthcare and social service settings should view OSHA’s recent update as an opportunity to review their own workplace violence programs and to update those programs as appropriate. At a minimum, employers should ensure that they have a written program in place that hits all of the areas highlighted by OSHA. That step will help ensure a safe workplace and greatly reduce the likelihood of receiving a citation should OSHA conduct an onsite inspection.

By Brent I. ClarkMark A. Lies, II, and Meagan Newman

shutterstock_171692768A draft proposed regulation from the California Division of Occupational Safety and Health (Cal/OSHA) would require health-care employers, home health and hospice providers and emergency responders to develop workplace violence-prevention plans, train their employees and keep records related to workplace violence incidents.

The draft also calls on hospitals to report violent incidents that result in an injury, involve the use of a firearm or other dangerous weapon, or present an urgent or emergent threat to the welfare, health or safety within 24 hours and all incidents would need to be reported within 72 hours.  Based upon the proposal’s definition “reportable workplace violence incident” employers would be required to report incidents that do not result in an injury if there was a high likelihood of resulting in injury, psychological trauma, or stress, or involved the use of a firearm or other dangerous weapon.

The proposal would further require employers to take immediate corrective action where a hazard is imminent and take measures to protect employees from identified serious workplace violence hazards within seven days of the discovery of the hazard. Additionally, employers would be required to maintain a “Violent Incident Log.”

This proposal follows the enactment of SB 1299, requiring Cal/OSHA to have a workplace violence prevention regulation for healthcare workers promulgated by July 1, 2016. Yet, California is not alone. The proposed regulation comes as emphasis on workplace violence increases in both federal and state plan OSHA jurisdictions.  Even in the absence of a federal OSHA regulation, inspection and enforcement activity concerning alleged workplace violence hazards is on the rise.

Employers in California and elsewhere should take care to evaluate their workplaces for potential workplace violence hazards and institute–and enforce–policies concerning training and reporting.  The absence of a current regulation will not prevent administrative enforcement action in the event of a workplace violence incident or related civil liability.

By James L. Curtis and Craig B. Simonsen

The teenage summer job working at the local store is a rite of passage in most communities. Almost everyone has held a summer job at some point in their life.  However, given the disturbing rise in workplace violence, teenagers can be swept up in hostile situations and end up facing down angry, sometimes violent customers.

This has resulted in workplace injuries and even fatalities that have captured the attention of OSHA officials. In a blog last week, OSHA Administrator Dr. David Michaels discussed the importance of training teens at work. Michaels cited to a study that found “that most teens had not been trained on how to respond to shoplifters or other threats of workplace violence.”

The Administrator noted that workers under the age of 25 are twice as likely to be injured on the job as older workers, and are often unaware of their workplace rights. The Massachusetts Coalition for Occupational Safety and Health study, which Michaels was citing to, concluded that “this high rate of injury can be explained in part by teens tending to be hired into industries that have a high risk for injury, such as restaurants, and that young workers are often provided insufficient health and safety training.” Emphasis added.

Michaels spelled out in his blog out that teens should receive training about workplace violence — “especially not to chase shoplifters.” Employers should establish workplace violence prevention programs, provide adequate security, including cameras and alarms, and “never allow teens to work alone.” He indicated that employers at risk are retail, food service, maintenance, and other industries teens are likely to hold jobs in.

Employers in these industries should take notice of Michaels’ blog, as we may be certain that his OSHA inspectors may well be looking for these sorts of violations. Review your workplace violence prevention policies, training programs, and safety procedures now to see how they measure up to the Administrator’s stated “adequate” minimums.

By James L. Curtis, Meagan Newman, and Kerry Mohan

“When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves – that the risk of significant physical injury is simply too great even for eager and willing participants? And most importantly for this case, who decides that the risk to participants is too high?” This is the question posed by Judge Kavanaugh in his dissent to the Court’s opinion in SeaWorld of Florida, LLC (“SeaWorld”) v. Thomas Perez, (No. 12-1375), issued this morning.

The U.S. Court of Appeals for the District of Columbia Circuit panel held that SeaWorld violated its duty to protect employees from “recognized hazards” when working with killer whales. “Statements by SeaWorld managers do not indicate that SeaWorld’s safety protocols and training made the killer whales safe; rather, they demonstrate SeaWorld’s recognition that the killer whales interacting with trainers are dangerous,” Judge Judith Rogers wrote on behalf of the court.

This ruling resulted from a citation issued by the U.S. Occupational Safety and Health Administration (OSHA) after trainer Dawn Brancheau died in February 2010. Ms. Brancheau drowned after being pulled underwater by a bull orca known as Tilikum at the SeaWorld site in Orlando, Florida. The original citations alleged three violations of the Occupational Safety and Health Act. Among them was a “willful” citation of the Act’s general duty clause for exposing employees to struck-by and drowning hazards when interacting with killer whales. After a hearing before an Administrative Law Judge, the “willful” citation was reduced to “serious” and affirmed.  See Secretary of Labor v. SeaWorld of Florida LLC, OSHRC, No. 10-1705. The ALJ found that close contact with killer whales, including Tilikum, posed a recognized hazard to SeaWorld’s employees.

The SeaWorld OSHA citation was noteworthy for a number of reasons. The incident and litigation that followed have resulted in significant media attention, including a popular documentary on CNN and much public debate about animal welfare and the cultural, moral and ethical issues surrounding the use of animals for entertainment. From a workplace safety/OSHA law perspective the case is no less riveting.

Because OSHA does not have a regulatory standard concerning work with killer whales, or even work with animals, the agency had to rely on the portion of the OSH Act known as the general duty clause.  The general duty clause, § 5(a)(1) of the Act, provides: “Each employer [ ] shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” 29 U.S.C. § 654(a)(1). In order to prove a violation of the general duty clause, the Secretary of Labor must establish that: (1) an activity or condition in the employer’s workplace presented a hazard to an employee; (2) either the employer or the industry recognized the condition or activity as a hazard; (3) the hazard was likely to or actually caused death or serious physical harm; and (4) a feasible means to eliminate or materially reduce the hazard existed.” Fabi Constr. Co. v. Sec’y of Labor, 508 F.3d 1077, 1081 (D.C. Cir.2007) (citation omitted).

In the SeaWorld case, it was the second and fourth prongs that were at issue. SeaWorld argued that working with killer whales did not pose a recognized hazard as intended by the Act and that a feasible means to materially reduce the hazard did not exist. SeaWorld argued that close contact with these whales was not a recognized hazard because, essentially, all whales behave differently and its training and safety program adequately controlled the risk. SeaWorld also suggested that because trainers “formally accepted and controlled their own exposure to . . . risks,” the hazard of close contact with killer whales cannot be recognized. These arguments were rejected by the majority opinion in today’s ruling. The Court held that Congress intended for the OSH Act to put the duty to ensure a safe workplace on the employer—not the employee. Moreover, the Court found abundant evidence to support the ALJ’s finding that close contact with killer whales posed a recognized hazard. With respect to the feasibility prong, the Court noted that SeaWorld’s own measures taken following Ms. Brancheau’s death proved the feasibility of abatement. Further, in response to the dissenting opinion’s references to the potential of end of football and NASCAR, the court noted that SeaWorld did not argue in this case that close contact with the whales was intrinsic to the work and that it would suffer substantial economic losses if that contact were prohibited. Football and NASCAR could make those arguments, the majority alludes.

Perhaps most interesting issue posed by this case is the notion of predictability as it is applied to find a recognized hazard of workplace violence. In the underlying administrative proceeding, SeaWorld argued that animal behavior, like human behavior, cannot always be controlled. SeaWorld contended that the Secretary should be held to a higher standard of proof for a recognized hazard under these circumstances. They cited, and the ALJ considered, an unpublished ALJ decision in another case concerning workplace violence, Megawest Financial Inc., 17 BNA OSHC 1337 (No. 93-2879, 1995).

In Megawest, the ALJ stated: “In the past, employers have been required to reduce hazards they could anticipate and reduce or eliminate. The problem with predicting workplace violence is the unpredictability of human behavior. In this case, the Secretary is asking Megawest to predict the criminal behavior of non-employees. Additionally, the anger and frustration that drives a resident to become violent may be fueled by a variety of factors.”

The ALJ in the SeaWorld case disagreed: “Unlike the apartment tenants in Megawest, the killer whales are in the continual custody of the employer. By their nature as aquatic animals the killer whales are confined to the pools, an environment over which SeaWorld can control access. Unlike the employees in Megawest who were subject to irate tenants showing up unannounced and with undetermined intentions, SeaWorld knew in advance when its employees were scheduled to interact with the killer whales. The trainers always initiated contact with the killer whales, and could anticipate that each time there would be a risk of injury or death.”

So what are we to make of circumstances in which humans pose a potential (an arguably quantifiable potential) of violence to employees AND whether those potentially violent humans are under the control of a particular employer? Both the ALJ’s and D.C. Circuit Court’s opinions emphasize the prior instances of threats or violent acts committed by Tilikum and other whales. These prior acts are then used to reach the ultimate conclusion that all whales—or at least killer whales—pose a recognized hazard to employees. But, how are employers to apply such an analysis to humans? What are the criteria that a healthcare employer should use to determine that all patients receiving mental health services or other treatment pose a recognized hazard? What criteria should be used by prison officials? How do employers decide when all close contact with any person meeting some set of criteria must be prevented?

There is no doubt that the intention of the OSH Act is to prevent employers from knowingly placing employees in danger. The questions that remain following this decision are (1) whether the Act prohibits any form of employment, even voluntary, where there is a known and intrinsic risk of injury and (2) whether the logic applied to OSHA’s whale behavioral analysis in support of its violation can be applied to human behavior. The general duty clause is already being used in instances of threats posed by humans. OSHA has issued a number of citations for workplace violence in the healthcare industry recently and this issue of predictability is paramount in those cases.

For now, it is clear that despite the absence of a federal regulatory requirement to do so, all employers should consider the risk of violence posed in their workplaces—whether that risk is posed by animals or people. All employers should have policies that address those risks and take steps to ensure that the risk, to the extent feasible, is minimized. For employers whose operations include the use, handling or training of animals, the SeaWorld decision is not just a cautionary tale. Close contact with the animals may be deemed a recognized hazard and, therefore, protocols and policies regarding contact with the animals should be carefully evaluated in light of the Court’s ruling.