In 2011, the federal Occupational Safety and Health Administration (OSHA) issued a directive advising its compliance officers of “Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents.” Under the directive, OSHA defines “workplace violence” in accordance with the National Institute for Occupational Health’s definition, which is “violent acts (including physical assaults and threats of assaults) directed toward persons at work or on duty.” The directive described four categories of workplace violence:
OSHA has not issued a standard addressing workplace violence but asserts that it has the authority to cite employers for failing to take steps to prevent workplace violence under Section 5(a)(1) of the Occupational Safety and Health Act of 1970 (OSH Act), otherwise known as the “General Duty Clause.” Under that statutory provision, employers are required to keep their workplaces “free from recognized hazards likely to cause death or physical harm.” OSHA takes the position that workplace violence is a serious recognized hazard.
OSHA has consistently claimed that late-night retail, health care, and social services are high hazard industries, meaning that these industries are particularly prone to experiencing workplace violence. Just recently, OSHA issued citations against a convenience store for failing to protect employees from workplace violence. A store clerk was robbed and set on fire shortly after opening the store at 7 a.m. As a result, OSHA issued four citations alleging violations of the General Duty Clause not only at the store where the attack occurred, but also at each convenience store owned by the employer TMT, Inc. in Garland, Mesquite, and Dallas, Texas.
While OSHA may assert that it has the authority to regulate the measures that employers should take to protect employees against criminal conduct, the ultimate determination will need to await litigation on the issue. This would likely come when an employer contests a General Duty Clause citation, and the case is litigated before the Occupational Safety and Health Review Commission and perhaps on appeal to a U.S. Court of Appeals.
In 1995, OSHA cited Megawest Financial, an apartment complex, for a violation of the General Duty Clause. Megawest Fin., 17 BNA OSHC 1337 (No. 93-2879, 1995). OSHA alleged that Megawest had failed to protect its employees, specifically the leasing office staff, from the threats and physical violence by the residents of the apartment complex. The citation arose from an incident involving an individual who was scheduled to move into the apartment complex but then changed her mind and wanted her deposit refunded. When the leasing office staff refused to refund her deposit, she sprayed mace in the eyes of one employee, resulting in the employee’s hospitalization. In presenting its case, OSHA pointed to the history of threats and physical incidents against the leasing office staff.
In vacating the citation, a Review Commission Administrative Law Judge (ALJ) concluded, “The Secretary now asks employers to anticipate and prevent criminal behavior on the part of non-employees. Such behavior, while certainly hazardous to its victims, is completely different from any other hazards addressed by the Act….While the threat of workplace violence is omnipresent, an employer may legitimately fail to recognize that the potential for a specific violent incident exists…. It is not enough that an employee may fear that he or she is subject to violent attacks, even if that fear is communicated to the employer, and even if the employee is one whose knowledge can be imputed to the employer. Nor is it sufficient that there has been a previous injury from a violent incident.” The ALJ went on to hold that the employer did not recognize the hazard and noted that Megawest did not fall into a “high-risk” industry group. The ALJ concluded that “this is not to imply that mere inclusion within a ‘high-risk’ industry group would confer recognition that the hazard of workplace violence exists for a particular employer.”
In 2011, OSHA cited the Renaissance Project, Inc., an addiction facility, for a General Duty Clause violation after the death of one employee and injuries to another employee were allegedly inflicted by a patient. OSHA also cited Acadia Hospital for one serious General Duty Clause violation with a penalty of $6,300 for failing to protect employees at a psychiatric hospital from assaults by violent patients. Renaissance initially contested the citation; however, it settled with OSHA prior to an administrative hearing, and has currently requested additional time to abate the citation. Acadia Hospital settled with OSHA without having to formally contest the citation and paid the full penalty of $6,300.
Given OSHA’s recent citations to an employer for the robbery of its convenience store clerk, OSHA may be signaling its intent to push the boundaries of the OSH Act in an attempt to hold employers responsible for third-party criminal conduct.
Although a Review Commission ALJ decision is not legally regarded as precedent, it is worth noting that in the 1995 Megawest case, the ALJ suggested that OSHA consider rulemaking to address the hazard of workplace violence. Now, roughly 16 years later, OSHA continues to rely on Section 5(a)(1) of the OSH Act to regulate the hazards of workplace violence. This may be another example of OSHA avoiding the risks and burdens of rulemaking and using the General Duty Clause to circumvent that process. Indeed, a proposed standard on workplace violence would likely provoke substantial objections from employers.
Equally important, such a rulemaking would place squarely in issue the question of whether OSHA has the authority under the OSH Act to inject itself into what seems more properly to be the purview of criminal law enforcement agencies. Finally, there is the substantial question of whether an agency with such limited resources should be requiring its compliance personnel to become sufficiently well-acquainted with complex social issues as to be competent to evaluate workplace violence prevention efforts to the point of determining whether citations and abatement are appropriate.
Stephen C. Yohay is a shareholder in the Las Vegas office of Ogletree Deakins, and Tressi L. Cordaro is an associate in the Washington, D.C. office of the firm.