[co-author: Tracey Oakes O’Brien]

In 2016, OSHA issued a serious citation to a private security guard firm that did not require its armed security guards to wear bulletproof vests. An ALJ tossed out the citation, but the story’s not over. OSHA has an appeal pending before the Occupational Safety and Health Review Commission. At stake: whether certain employers must require employees to wear bulletproof vests as personal protective equipment (PPE).

OSHA’s petition in the Schaad case seeks to expand PPE requirements under 29 C.F.R. §1910.132(a) to include bulletproof vests. OSHA’s argues that an armed security guard working where armed robberies could occur could be the victim of a shooting. Significantly, OSHA takes this position despite evidence that the security industry as a whole does not require employees to wear vests. And in the Schaad case, OSHA ignores a 45-year track record without any shootings. If OSHA prevails on its appeal, the impact could extend far beyond the security industry.

Years of safe operation and protective measures above and beyond

What happened in this case? Schaad Detective Agency provided armed security guards to the Pennsylvania Turnpike Commission. The guards accompanied Turnpike drivers in an unmarked van as they collected money at toll booths . On March 20, 2016, a Turnpike employee and one of the private security guards arrived at a toll booth and learned of a robbery in progress. The teller had just disarmed the suspect and escaped, but the robber was on the loose. The security guard exited the van to apprehend the suspect. He was shot and killed by the suspect. The attacker was unusually dangerous – a former state trooper, equipped in combat gear and carrying a high-powered assault rifle.

The armed security guard had not been wearing a bulletproof vest. Schaad had purchased bulletproof vests voluntarily and had encouraged – but did not require – its armed guards to use the vests. At the Turnpike site, the armed guards’ purpose was to deter armed robberies, not to fight off attackers. Many, but not all, of Schaad’s armed security guards often wore the vests.

Expert testimony established that the security industry as a whole did not generally require guards to wear bullet proof vests and that Schaad had gone above and beyond industry norms by providing custom vests for its armed guards. Schaad also had never experienced an armed robbery or violent assault in 45 years of providing its services, including 20 years providing armed guards for the Pennsylvania Turnpike Commission.

OSHA’s position: Bulletproof vests = required PPE

OSHA contends that Schaad violated 29 CFR §1910.132(a). That provision requires that PPE “shall be provided… whenever it is necessary by reason of hazards of processes or environment… encountered in a manner capable of causing injury… in the function of any part of the body… through… physical contact.” According to a 2013 Letter of Interpretation, OSHA considers bulletproof vests to be protective equipment that may be required under §1910.132(a).

OSHA argued that the risk of an armed robbery created a hazard of being shot. It alleged that Schaad recognized that a “shooting was a realistic possibility,” especially given these circumstances:

• The transportation of large sums of money,
• The requirement that the security guards carry a gun, wear a uniform similar to a police officer, and be former law enforcement personnel,
• Schaad’s policy regarding proper use of weapons,
• The guard’s purpose of deterring robberies,
• Schaad’s policy requiring armed guards to call police in the event of an attempted robbery, and
• Schaad voluntary providing vests for its guards.

According to OSHA, a reasonable person familiar with the circumstances would recognize that an armed robbery hazard existed. The lack of prior incidents and the use of an unmarked van didn’t matter to the agency.

The ALJ tosses out the citation

In his December 2018 decision, the ALJ found that OSHA’s PPE standard did not require Schaad to use vests. He considered the severity of the harm and “the likelihood of the risk” of an armed robbery. Though the consequences of a shooting would be severe, the Judge found that OSHA did not prove Schaad’s actual knowledge of the hazard.

According to the Judge, the risk of an armed robbery was no more than a “speculative possibility.” He agreed with the company that simply providing vests to employees did not mean that Schaad actually knew there was a likelihood of a shooting. Schaad’s long track record without a shooting suggested one was unlikely. The company also took steps to minimize that risk – using unmarked vans, hiring skilled guards, and providing vests voluntarily.

The ALJ also found that even if the standard applied, OSHA did not provide notice of what the rule required. Nothing in the standard or a 2013 OSHA LOI required employers to mandated use of bulletproof vests. Three prior citations issued by OSHA to other employers did not provide enough information to constitute notice. Applying the standard to Schaad without notice would violate the company’s due process rights.

Will the Commission accept a major new mandate for security companies, retail stores, gas stations, banks, and other employers with security teams?

If the Commission overturns the Judge’s decision – and upholds OSHA’s citation – the implications could be sweeping. OSHA’s position appears to penalize employers for taking extra precautions and safety measures. It doesn’t matter that a company provides experienced, uniformed, armed guards and bulletproof vests. In fact, it looks at these factors as reasons to require additional PPE. OSHA also does not give credit to the ability of experienced security to assess the risk in a given situation and protect themselves. Remember, Schaad made vests available; the question is whether employees should have been required to wear them.

In addition, OSHA’s reasoning would extend far beyond security companies. Any employer with security personnel – especially uniformed or armed guards – would have to consider providing bulletproof vests. OSHA could well argue that operating in higher-crime areas and at late hours would be additional factors. It could point to statistics showing that certain industries have higher rates of armed robberies or attacks. This could sweep as far and wide as gas stations, convenience stores, grocery stores, big box stores, armored personnel companies, banks, shopping malls, other retail stores, universities, and even hospitals. If Schaad could lose with its 45-year track record of no incidents, certainly others who have been the victims of crime would have compliance challenges. All eyes will be on the appeal to see if the Commission brings the citation back to life.

Addressing workplace violence – including when it comes from robberies and criminals – is a growing issue under the microscope at OSHA and on Capitol Hill. The Husch Blackwell safety and health group can help retailers, security firms, banks, healthcare facilities, universities, and others develop compliant safety and security plans to protect employees from threats of violence.