July 1996

Workplace Labor Update - Supreme Court Expands ERISA Liability – July 1996

10 min

?Notice: These guidelines are not a new standard or regulation. They are advisory in nature, informational in content, and are intended for use by employers seeking to provide a safe and healthful workplace through effective workplace violence prevention programs adapted to the needs and resources of each place of employment.?

With these words, the federal Occupational Safety and Health Administration (?OSHA?) on March 15 issued its long awaited guidelines on preventing workplace violence. The guidelines are directed exclusively to healthcare and social services employers and contain disclaimers like the one above intended to downplay their significance. Nevertheless, these guidelines represent a major shift in OSHA?s enforcement policies and present thorny new compliance concerns for employers, including employers in industries other than healthcare. This article will discuss OSHA?s guidelines and highlight some of the issues raised by them.

The Context

The topic of workplace violence was addressed in the July 1994 issue of the Workplace Labor Update. We noted that workplace violence and the response to it could trigger liability under workers? compensation statutes, common law negligence theories, anti-discrimination laws, and even occupational safety and health laws. At the time, OSHA had begun issuing citations to employers who failed to protect their workers from being assaulted under its general duty clause, which requires employers to provide workers with a workplace that is free from recognized serious hazards to their health and safety. To sustain a citation under the general duty requirement, OSHA must show that a condition or activity in a workplace presents a hazard, that the employer or its industry recognizes the hazard, that the hazard is one that is likely to cause death or serious harm, and that feasible means exist to eliminate or reduce the hazard.

The propriety of OSHA?s issuance of such citations was subsequently questioned in Megawest Financial, Inc. (decided last year). In that case, OSHA cited the owners of an apartment complex under the general duty clause after management office employees complained of being verbally threatened and physically attacked by residents enraged over evictions, car towings and maintenance disputes. The complex owners refused to take any safety measures such as providing two-way radios, alarm buttons, security guards, staff training, or terminating the leases of threatening or violent tenants. One employee eventually quit and another transferred out of fear.

An administrative law judge dismissed the citation. Observing that OSHA lacks both the legal mandate and resources to ?police social behavior,? the judge criticized OSHA for issuing citations under the general duty clause before establishing a workplace violence standard since employers were being cited without being informed what was expected of them. Because of the unpredictable nature of violent behavior, the judge also ruled that a high standard of proof was required to show that an employer recognizes workplace violence as a hazard. The judge stated that an employee?s fear of violent attack, even when communicated to the employer, and prior incidents of violent attacks are insufficient to establish recognition of a hazard. Accordingly, even conceding the existence of a hazard, the judge found that OSHA had not proven the existence of a recognized hazard for general duty purposes.

The Guidelines

The recently issued guidelines are in part an effort to respond to the criticisms in and burdens imposed by the Megawest Financial case. While the voluntary guidelines purport to be restricted to healthcare and social service occupations, the principles are sufficiently generic that OSHA will likely try to apply them to other industries. Indeed, OSHA circulated a similar draft proposal for the retail industry in April and is soliciting comments on them from retailers.

Although the issue of workplace safety is far more complicated than traditional safety and health issues, OSHA?s approach to regulating workplace violence follows its traditional approach to workplace safety issues. Like ?any effective safety and health program,? OSHA asserts, an effective program for preventing workplace violence must include components for: (1) management commitment and employee involvement; (2) work-site analysis; (3) hazard prevention and control; and (4) training.

Management commitment refers to top-down involvement in controlling workplace safety, including demonstrable ?organizational concern for employee emotional and physical safety and health.? Presumably, this means the allocation of resources and money necessary to pay for a program and the assignment of management responsibility for implementing and maintaining the program?s effectiveness. Employee involvement includes insuring that employees understand the employer?s security measures as well as employee participation in teams or committees investigating incidents and recommending corrective steps. An important aspect of this commitment is the recommendation that employers, especially larger ones, have a written program that reflects ?zero-tolerance? for workplace violence and threats, encourages employees to report incidents, and describes the employer?s plan for maintaining workplace security.

The guideline next suggest that employers assess their worksite for its vulnerability to workplace violence and the appropriate actions to be taken. This step should include review of medical, safety, workers? compensation, and insurance records as well as discussions with similar local businesses or civic groups to determine whether any trends exist. The guidelines also suggest that employees be polled in order to learn their concerns and that a safety coordinator periodically inspect the workplace to ensure that risk factors for violence are identified and addressed.

To control workplace violence, OSHA suggests that employers first try to ?engineer? away the problem, and next to resort to work practice, or administrative, controls. Engineering controls include incorporating safety planning into plans for new construction, installing alarm systems, providing metal detectors, installing video cameras and mirrors, enclosing work stations, providing locks and improving lighting. Work practice controls include requiring employees to report assaults and threats, ensuring adequate staffing, and establishing a system for identifying and restricting individuals with violent propensities. The OSHA guidelines go so far as to suggest that as an administrative control, employers encourage employees to dress conservatively and discourage them from wearing jewelry. Finally, the OSHA guidelines state that a workplace violence program include ?essential? post-incident response and evaluation, including psychological evaluation for any employee who is verbally or physically assaulted or who witnesses such an assault or attack, regardless of the seriousness of the incident. In this regard, OSHA advises that supervisors and employees should be trained to behave compassionately.

The last component of an effective program under the OSHA guidelines is employee training. Drawing from its blood-borne pathogen rules, the OSHA guidelines emphasize the idea of ?universal precautions for violence.? The guidelines suggest that training should be provided at least annually and perhaps, more frequently. Employees should be trained in a diverse number of topics, from standard response actions to issues relating to multi-cultural diversity and sensitivity.

What Does This All Mean?

Although perhaps well intentioned, the guidelines unfortunately do not provide much specific guidance. On a positive note, the guidelines do identify a variety of options available to employers trying to minimize the threat of violence. Less charitably, the guidelines succumb to notions of political correctness and a utopian viewpoint of how the workplace and society should function, at the employer?s expense. Here are a few of the shortcomings and ways the guidelines affect employers.

The guidelines address only threats from non-employees. They do not address the risks among employees. Moreover, because OSHA regulates only workplace safety and health, the guidelines do not provide any assistance to employers in determining what duties an employer may have or what steps it can take to protect non-employees from risks posed by its employees.

The OSHA guidelines are too general to be helpful. Phrased in glittering generalities, the OSHA guidelines are not particularly helpful to employers trying to comply. Although the guidelines suggest employers will have latitude to decide what steps are effective and necessary, there is a real risk that individual OSHA compliance officers will second guess an employer?s judgment. Because the result of this type of disagreement is a citation, an employer may find itself litigating whether its safety program was ineffective because it did not, for example, have a bullet proof enclosed nurse?s station. The risk is that, in practice, compliance officers will expect employers to guarantee worker safety, a duty that does not exist under the OSH Act or at common law.

Moreover, these guidelines do not assist employers in evaluating and meeting competing legal obligations. For example, the guidelines state that ?management and front-line employees must work together, perhaps through a team or committee approach? and go on to detail specific activities reflecting the involvement of both management and employees. Even while doing so, OSHA notes in passing that, ?If employers opt for this strategy, they must be careful to comply with the applicable provisions of the National Labor Relations Act.? This casual reference obscures the thorny legal issue posed by management-labor teams and to which Bob Ames? April 1993 WLU lead article was devoted. OSHA?s guidelines nowhere suggest that compliance with its team approach may be illegal under existing law.

Compliance with OSHA?s plan could result in new types of liability and new standards of care. For example, the guidelines suggest establishing a system to identify patients and visitors ?with a history of violence? and state that a list of such individuals should be made available to a variety of employees. Employers that prepare such a list could be subjecting themselves to claims for defamation, among others. Likewise, an employer that attempts to enforce a rule requiring safe dress could potentially find itself confronting a claim of sex, religious or ethnic discrimination.

The guidelines state that the ?failure to implement these guidelines is not in itself a violation of the general duty clause,? but reiterate that employers may be cited for violating the general duty clause if OSHA believes there is a recognized hazard of workplace violence in their establishment and nothing has been done to prevent or abate it. For healthcare and social services employers, at least, OSHA is likely to use the existence of its guidelines to assert that workplace violence is a recognized hazard in those settings. Compliance officers are likely to view the guidelines as a blueprint for the actions that healthcare and social services employers should take, notwithstanding the disclaimer that the guidelines are voluntary and informational. Perversely, as more and more employers in these industries adopt the guidelines, OSHA?s arguments in favor of industry recognition of a hazard are strengthened.

As a practical matter, then, the existence of these guidelines means that healthcare and social services employers should examine their workplaces for factors suggesting the risk of violence, at least from patients and visitors. Those employers should then consider what, if any, steps can or should be taken to address the potential threats or risks identified. Notwithstanding the voluntary guidelines, such steps must be considered in light of applicable law, with consideration of what additional duties and liabilities, if any, may be assumed or created by any particular acts that may be taken. The problem for healthcare employers is that under the general duty clause, OSHA need only prove that a feasible means exists to materially reduce the hazard posed. It is uncertain whether OSHA will use a cost-benefit analysis in assessing which of the options suggested in the guidelines are feasible: mere expense may not be a defense. This means, as a practical matter, that employers in those industries need to review the options identified in the guidelines for feasibility.

The emphasis of the guidelines on healthcare does not mean that employers in other industries do not need to be concerned about workplace violence or the possibility of OSHA citations. As noted earlier, OSHA has already developed draft guidelines for the retail industry, and OSHA is likely to continue to use the general duty clause to address specific situations in other industries.

The guidelines change OSHA recordkeeping requirements for all employers. The guidelines affect the recordkeeping and reporting requirements for all employers, regardless of their industry. OSHA has clearly indicated in the guidelines that injuries to working employees caused by assaults must be recorded and that the death of a working employee as a result of an assault must be reported to OSHA within eight hours. Failure to comply with these recordkeeping and reporting requirements can lead to citations and the imposition of penalties on employers in industries beyond healthcare and social services. These very records could lead to an inspection and an assertion by OSHA that an employer recognized a workplace violence hazard.


It remains to be seen how OSHA?s guidelines will be enforced. To the extent that they enable employers to recognize the possibility of violence and take proactive steps, the guidelines can be beneficial. Unfortunately, the guidelines are equally if not more likely to result in second guessing employer efforts and the creation of new responsibilities for employers to safeguard both the emotional and physical stability of workers.