Workplace Violence Is on the Rise, and So Are Regulations

Everyday acts of workplace violence affect more than a million Americans each year. A federal study published last year found an annual average of 1.3 million nonfatal workplace violence incidents between 2015 and 2019. Workplace homicides increased by 11% over that period, although they were down considerably from their peak in 1994.

In its most recently published data, the BLS found that in 2020, there were 392 homicides and more than 37,000 injuries in the workplace that resulted from intentional violence. Sales, transportation, management, construction and production are the five occupational groups with the highest rates of workplace homicide.

The Occupational Safety and Health Administration (OSHA) is beginning to place greater emphasis on employers’ efforts to prevent workplace violence. OSHA defines workplace violence as “any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site.” It can range from threats and verbal abuse to more serious incidents like physical assault and homicide. 

While OSHA does not have a specific standard on workplace violence for all employers, its General Duty Clause requires employers to provide a safe workplace for employees. Unlike some OSHA standards that apply only to specific industries or types of employers, every employer is required to comply with this obligation and do what it can to keep employees safe in the workplace.

OSHA recommends that employers consider the following steps to decrease the threat of workplace violence and maintain a safe and secure workplace:

• ·       Educate employees on what conduct is not acceptable and what they should do if they witness workplace violence. This should be part of an employer’s ordinary safety training. Training and employee education are crucial steps toward preventing or decreasing the risk of workplace violence.
• Take steps to keep the workplace secure — install video surveillance, if necessary, make sure all areas are well-lit and minimize access to the workplace by outsiders without the proper security clearances.
• Limit the amount of cash on hand to a minimal amount.
• Equip employees with cellphones and handheld alarms or noise devices. Always make sure you know your employees’ whereabouts and have them keep management updated on their movements.
• Encourage employees not to enter a location where they feel unsafe, and to use a buddy system or a company safety escort in potentially dangerous situations, especially at night.
• Have procedures for employees to notify their supervisor if they feel unsafe or have concerns about potential workplace violence.

OSHA has not released any guidance specific to manufacturing, but its recent emphasis on violence reduction in the healthcare setting can serve as a guide. In March, OSHA convened a panel of healthcare leaders to begin developing a standard for the prevention of workplace violence.

We expect OSHA to expand its emphasis on workplace violence reduction to manufacturing and other industries with high rates of violence.

Earlier this year, OSHA issued a $15,625 penalty to Texas Children’s Hospital for 15 incidents of patient-against employee violence, after a security guard was attacked by a patient with behavioral health issues. The hospital did not provide training for preventing and responding to violent incidents or have a system in place for tracking them, the citation found.

“Employers must have certain effective policies and procedures in place so employees don’t have to work in fear [for] their safety,” stated Mark Briggs, OSHA’s Houston-area director, at the time.

States Take Action

States around the country are also beginning to enact specific legislation targeted at reducing workplace violence. In Texas, Governor Greg Abbott recently signed a bill requiring hospitals and other healthcare providers to enact specific workplace violence prevention policies by September 2024. A related law requiring all employers to post a notice to employees containing contact information for the Texas Department of Public Safety’s Workplace Violence Hotline took effect on September 1, 2023.

In September, California Governor Gavin Newsom signed a workplace violence prevention law applicable to all California employers. The law requires employers to have an “effective program” in place to prevent workplace violence by July 1, 2024, although it provides little guidance on what constitutes such a program. It directs Cal/OSHA, the state regulatory agency with jurisdiction concurrent with OSHA’s, to enact a specific standard on workplace violence prevention by December 2026.

In addition to increased oversight from OSHA and state regulators, incidents of workplace violence could also subject an employer to legal liability from employees. In many jurisdictions, workers’ compensation explicitly excludes intentional instances of violence in the workplace. Depending on state tort and premises liability law, an employee who experiences violence at the hands of a coworker or third party may have a claim against his or her employer.

Employers should have a zero-tolerance policy for violence in the workplace that is outlined in the company’s employee handbook or similar document, delineating the steps the employer is taking to reduce the threat of violence. This policy should be tailored to the specific risks the employer’s company or workplace may face and can vary between industries.

Employers should also train their employees on violence prevention and have plans in place for common workplace violence scenarios. Training should consist of, at a minimum, education about the company’s policies and procedures for preventing workplace violence, letting employees know how and to whom they should report threats of violence, and training on reacting to scenarios the employer anticipates could impact their workplace.

If an employee becomes the victim of workplace violence, it is important to document the incident, provide prompt medical attention, if necessary, and report the incident to the police immediately.

Jane Heidingsfelder is a partner in Jones Walker’s Labor & Employment Practice Group. She has extensive experience representing clients in a wide array of industries before the Occupational Safety & Health Administration (OSHA), Mine Safety & Health Administration (MSHA), and the Chemical Safety Board (CSB). Jacob Pritt is an associate in Jones Walker’s Labor & Employment Practice Group.