By Robert G. Chadwick, Jr.,  Partner, Freeman Mathis & Gary, LLP.

On October 18, 2017, an employee of a Maryland granite company allegedly killed three co-workers and wounded two others at his place of employment. Police reported that the employee allegedly shot all five co-workers with a .380 caliber handgun.

According to OSHA, “2 million American workers are victims of workplace violence each year.” For Fiscal Year 2015, the Bureau of Labor Statistics reported that workplace violence accounted for 417 homicides; 354 of these homicides were attributed to gun violence. A recent FBI study found that 80% of active shooter situations occurred at work.

OSHA has been addressing workplace violence for years. In the past year, however, the agency has recently undertaken new initiatives to curb workplace violence. On December 6, 2016, OSHA issued a Request for Information to determine whether a new standard is needed to protect healthcare and social assistance workers from workplace violence. On January 19, 2017, the agency published a new Compliance Directive setting forth enforcement procedures and scheduling for occupation exposure to workplace violence. On June 29, 2017, OSHA issued the largest workplace violence citation in history when it issued a $207,690 failure to abate citation and fine against a Massachusetts behavioral health facility.

So, what do employers need to know about OSHA enforcement activities as to workplace violence?

Many Workplace Violence Incidents Must be Reported

All employers are required to notify OSHA when an employee is killed on the job or suffers a work-related hospitalization, amputation, or loss of an eye. A fatality must be reported within 8 hours. An in-patient hospitalization, amputation, or eye loss must be reported within 24 hours.

Fatalities or Injuries From Workplace Violence May Need to be Recorded

Under OSHA regulations, each employer required to keep records of fatalities, injuries and illnesses, must record each fatality, injury or illness that is “work-related.” 29 C.F.R. §1904.4 According to OSHA, an injury is presumed to be work-related if it results from an event occurring in the work environment. A fatality or injury from workplace violence may thus need to be recorded even if the incident itself was not work-related.

OSHA Can Conduct Inspections or Investigations as to Workplace Violence Exposure

The January 19, 2017 compliance directive addresses the procedures for inspections for hazards associated with occupational exposure to workplace violence. The directive provides that these procedures shall include review of the employer’s (1) written plan or other policies and procedures to protect employees from workplace violence; (2) injury and illness records; (3) training records; (4) employee medical records, and (4) other records such as police and security reports. Employee interviews are also contemplated by the directive.

OSHA Can Issue Citations Based Upon Workplace Violence Exposure

There is no OSHA specific standard which addresses workplace violence. However, under the General Duty Clause, Section 5(a)(1) of the Occupational Safety and Health Act of 1970, employers are required to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious harm.” As to an alleged workplace violence hazard, OSHA can prove a violation of the general duty clause by showing (1) the employer failed to keep the workplace free of a hazard of workplace violence to which its employees were exposed, (2) the hazard was recognized by the employer, (3) the hazard was causing, or likely to cause, death or serious physical harm, and (4) there was a feasible and useful method to correct the hazard.

OSHA Does Issue Citations Based Upon Workplace Violence Exposure

During the period from October 30, 2012 through October 20, 2017, over 50 citations were issued by OSHA under the General Duty Clause against employers for workplace violence exposure. One citation was issued against a retail store where a store associate was shot during an armed robbery.

Another citation was issued against a security company whose security guard was fatally shot by a visitor to a federal building. The abatement proposed by the citation was the development and implementation of a workplace violence prevention program.

Yet another citation was issued against a convenience store where a clerk was set on fire during a robbery. This citation also proposed the development and implementation of a workplace violence prevention program, which included annual training of employees.

Takeaways for Employers

To be sure, not all workplaces can be alleged to have presented a risk of workplace violence, even when an incident occurs. Many incidents are simply incapable of being foreseen by an employer. The General Duty Clause, however, entails elements which are capable of broad interpretation. Especially when there is an employee fatality or horrific injury, OSHA may attempt to stretch the General Duty Clause to its limits. When in doubt, therefore, an employer should implement a written workplace violence prevention program which includes employee training.

If an incident of workplace violence occurs, an employer must also be mindful of its reporting and recording obligations. Even where a violation of the General Duty Clause cannot be shown, an employer can still be cited for not meeting its reporting or recording obligations.