The horrific events on the Virginia Tech campus shocked the consciousness of the United States, if not the entire world. While media coverage has focused on the state of security on college campuses and Virginia Tech's response to the various events, workplaces can be just as vulnerable to shooting sprees by disturbed individuals. Indeed, the Virginia Tech incidents highlight the need to have a plan and be prepared, if and when trouble strikes. In addition to possibly saving lives, every move you make — or don't make — will be closely scrutinized for liability after the fact.
The good news is that statistical evidence indicates such events are still quite rare. In 2004, the National Institute for Occupational Safety and Health (NIOSH) issued a comprehensive study on preventing workplace violence. See http://www.cdc.gov/niosh/docs/2006-144/default.html#a11. The report cites the annual Workplace Safety Index, by Liberty Mutual Insurance Company, which indicated that "assaults and violent acts" were the 10th leading cause of nonfatal occupational injury in 2002, representing about 1 percent of all workplace injuries and a cost of $400 million. During the 13-year period from 1992 through 2004, an average of 807 workplace homicides occurred annually in the United States, according to the Bureau of Labor Statistics Census of Fatal Occupational Injuries [BLS 2005].
In addition to the purely humanitarian concerns for workplace safety, employers face potentially significant legal liability when acts of workplace violence occur. There are no specific federal regulations concerning an employer's obligation to prevent workplace violence. However, Section 5(a) of the Occupational Safety And Health Act (OSHA), also known as the General Duty Clause, obligates every employer to provide employees with a workplace free from recognized hazards likely to cause death or serious physical harm. In the event of violence in the workplace, OSHA may rely on the General Duty Clause to cite an employer, claiming that there was a recognized hazard of violence in the workplace and that the employer did nothing to prevent or abate it. Also, from time to time, OSHA and NIOSH have published informal guidance regarding the growing incidence of workplace violence. These advisory guidelines, although specifically directed to particular situations such as health care and social service workers, taxi cab drivers and late-night retail establishments, provide a useful starting point for developing a program aimed at prevention.
In addition to the Occupational Safety and Health Act, other sources of potential liability for workplace violence include workers' compensation benefits to the injured employee(s) and tort liability to third-party victims and their families, arising from allegedly negligent acts of those under the employer's control (supervisors, agents and employees) including theories of negligent hiring or negligent supervision. In light of these risks, every employer should analyze its own workplace, regardless of industry, to identify potential problems to be prepared in the event of trouble.
For example, all employers should review their workplace and consider what particular threats exist, both internally and externally, that could lead to violence. An effective strategy designed to prevent workplace violence should contain four main components:
- Management commitment and employee involvement
- Work site analysis
- Hazard prevention and control
OSHA suggests that to successfully tackle this problem, an employer must obtain input and expertise from not only safety and security managers, but also from medical, employee relations and legal department staff members. Security experts and the above-cited 2004 NIOSH report suggest developing a "Threat Assessment Team" to coordinate the work site analysis and to study incidents that have occurred in both the employer's business and similar businesses in the community. This team should work to identify particular hazards, conditions and operational situations that could lead to violence in the workplace. Any effective program will require the installation of necessary security devices or the use of instruments such as private channel radios, cellular phones and other communication devices that allow employees to summon help prior to an incident occurring, along with training on exactly who should do what when trouble strikes.
Employers should also develop administrative and work practice controls designed to prevent violence. The specifics must be developed within the context of the industry and particular risks associated with each workplace. Some examples include implementing security procedures for all employees and visitors as well as establishing physical barriers which could operate to isolate and restrict a roving shooter. Knowing how to respond to incidents of violence when they occur is also an integral part of any effective violence prevention program. All employees should be trained on universal precautions for violence, that is, that violence should be expected but can be avoided or mitigated through proper preparation.
No employer can absolutely ensure that its workplace will be free from violence. However, employers who take proactive steps to reduce the risk will be able to minimize their exposure and respond quickly and appropriately when incidents occur.
There are a wealth of additional resources available on this subject which the authors of this article can direct you to. Please feel free to contact them directly.
Jill M. Lashay is a shareholder in the firm's Harrisburg, Pennsylvania, office.