An estimated two million American workers are victims of workplace violence each year, costing businesses billions of dollars annually in impaired productivity, employee turnover, security measures and legal costs, according to the U.S. Department of Labor.
Incidents of workplace violence can result in citations under the Occupational Safety and Health Administration’s (OSHA) General Duty Clause, in addition to civil liability for employers.
While an individual OSHA citation carries maximum penalties, the citations can carry much greater implications for employers. Several courts have held that a willful violation of an OSHA regulation is evidence of a breach of the standard of care owed to employees under state law. This means workers’ compensation exclusivity may not apply and the employee can sue the employer for various torts, including negligent hiring, supervision, training or retention.
Juries hold employers responsible for these incidents with increasing frequency and in staggering amounts. In 2016, a California help desk technician was awarded nearly $7.4 million in damages following a workplace violence incident where a coworker grabbed the technician’s neck and choked him. As this case shows, failure to implement and enforce a workplace violence program can have significant repercussions for employers.
OSHA’s Recommendations for a Workplace Violence Program
If an incident of workplace violence occurs, one of the first things OSHA will do is determine whether the employer has an adequate written workplace violence program in place. The program should offer a blueprint of the various measures the employer will take to prevent and respond to a workplace violence incident. According to OSHA, a written workplace violence program should include, at a minimum:
- a written workplace violence policy statement for employees, summarizing what is and is not expected of employees, and explaining how the standards of conduct will be enforced;
- the assignment of oversight and prevention responsibilities to appropriate personnel;
- a workplace violence hazard assessment and security analysis, including a list of the risk factors and hazards identified in the assessment and how the employer will address the specific hazards identified;
- an employee questionnaire to obtain input on potential risks and vulnerabilities;
- appropriate employee training on the workplace violence program and policy;
- a training program, including a written outline and/or lesson plan;
- development of workplace violence controls, including engineering and administrative controls, to prevent incidents;
- a recordkeeping system and guidelines;
- an annual review of the workplace violence program, including an updated hazard assessment each year; and
- procedures, policies and responsibilities to be implemented in the event of a workplace violence incident, including investigation procedure.
Developing a Workplace Violence Program and Policy
In crafting a workplace violence program, it is important to keep in mind what constitutes workplace violence. Most people think of a physical assault when they hear the term “workplace violence,” but verbal abuse and harassment make up a larger portion of reported incidents of workplace violence. According to OSHA, “[w]orkplace violence is any act or threat of physical violence, harassment, intimidation or other threatening disruptive behavior that occurs at the work site.” In a historically male-dominated industry, it is particularly important for management and employees to understand that workplace violence includes verbal abuse and harassment.
An employer drafting a written workplace violence program and policy should evaluate the workplace and ascertain what makes sense in that workplace’s particular context. Steps in evaluating can include:
- reviewing any history of violence in that particular workplace, including employee questionnaires, OSHA 300 logs, incident reports and health and safety records;
- evaluating the history of violence in similar places of employment;
- visually inspecting the workplace to identify risks associated with the design, layout and administrative procedures; and
- reviewing unique risk factors in the workplace (e.g., workplace is located in an area with a high crime rate, public access to workplace is not limited or controlled, employees are working late night or early morning hours).
Once the workplace is evaluated and factors identified that may increase the risk of violence, employers can implement engineering and administrative controls as a part of the workplace violence program. For a construction site, engineering controls may include properly securing the workplace, limiting the number of entrances, using adequate exterior lighting, installing video surveillance and ensuring employees have appropriate communication devices to use in the event of a workplace violence incident.
Administrative controls can include training employees on various aspects of the workplace violence program, including what constitutes workplace violence, how to respond to and report incidents of workplace violence and how to identify indicators and signals of potential violent episodes.
Once an employer develops a written workplace violence program and policy, consistent and regular employee training and enforcement of the policy are key elements for success. A comprehensive workplace violence program and policy can only go so far if management does not actually implement the program and consistently enforce the policy.