When It Comes To Workplace Violence, Prevention Is The Best Medicine

By: Greg Reilly and Adam Guttell
Wednesday, October 7, 2015

The recent on-air slaying of two newscasters by their disgruntled former co-worker reminds all employers of the need to prevent workplace violence. A key tool in this effort is the special guidance for healthcare institutions developed by the United States Department of Labor, Occupational Safety and Health Administration (“OSHA”).

According to OSHA, healthcare workers suffer 50 percent of all workplace assaults. This number accounts not just for assaults by co-workers, but also by patients and other facility visitors. Accordingly, a healthcare facility is more likely than any other place of work to experience workplace violence.

To help reduce incidence of workplace violence, OSHA recommends instituting a violence prevention program containing the following elements: (1) employee and management participation, (2) evaluation and control of the worksite, (3) prevention and control of hazards, (4) training, and (5) recordkeeping and review.

Employee and management participation requires appropriate commitment in terms of resources and time. Evaluation and control of the worksite means understanding and evaluating the physical space so that any violence prevention program accounts for the risks associated with different job classifications, departments, and physical locations. It also should account for physical planning to avoid hazards in order to improve safety and security. Prevention and control of hazards may require implementation of physical changes to the worksite, such as securing entrances and exits, adding security controls, and adding or improving security surveillance. Training requires commitment by management to regularly in-service and train employees on security procedures and compliance.

Finally, record keeping and review means institutionalizing what works and identifying and correcting deficiencies.

In particular, healthcare employers should conduct a thorough job risk assessment, which accounts for the type of job and physical location where the job is performed. For example, some job categories may encounter a higher risk of potential violence, such as overnight emergency room staff as compared to clerical workers. OSHA recommends giving priority to such positions by assessing (1) whether there is a history of high assault rates; (2) whether the job has undergone a change in responsibility that increases the risk of assault; and (3) whether the job requires written instructions in conducting certain activities that may increase the risk of assault.

Practical planning and guidance will go a long way toward minimizing ambiguity in the prevention of workplace violence. What cannot be completely eliminated, however, are situations that may be disturbing but not actionable. Likewise, we note that confronting employees who engage in bizarre behavior may subject a cautious employer to the risk of civil liability, such as discrimination or harassment claims filed with administrative agencies or as private lawsuits. The risk of claims from employees who believe they are targeted because of their behavior can be higher because the employee may perceive that such attention is linked to a protected characteristic, such as mental health issues, lifestyle choice or mere difference from other similarly situated employees. Addressing this risk requires serious assessment of the workplace. First, employers must determine whether conduct is truly threatening or merely bizarre.

Employees with unusual personalities may not warrant scrutiny and such attention could result in workplace conflict and other unintended consequences. By comparison, threats of violence, distribution of disturbing correspondence, or co-worker harassment warrant immediate attention by employers. Second, employers must balance the risk of litigation liability against the risk of physical harm in the workplace. Depending upon the circumstances, it may be worthwhile to take the risk of potential litigation rather than risk workplace violence.

All facilities, large and small, must view violence prevention as a priority. The policies and procedures for large healthcare institutions can be scaled for physician practice groups, tertiary care facilities and sole practitioner’s offices. In order to create an effective violence prevention program or improve existing programs, we recommend speaking with employment counsel to minimize risk and keep your workplace safe.

Greg Reilly and Adam Guttell are Partners in Martin Clearwater & Bell LLP’s Employment & Labor Practice Group. For more information, contact gregory.reilly@mcblaw.com or adam.guttell@mcblaw.com.