As we have been inundated with media coverage of mass shootings, the public at large has been polarized in its response. However, the efforts to protect employees cannot stall due to polarized ideas to stem the tide. The root causes and sources of the violence are varied, no single or simple prevention or mitigation strategy will suffice; thus, a holistic approach is necessary.
Employers should be thinking about more than compliance, as workplace violence-specific legislation has been slow to realize. Employers should not ignore compliance aspects because the state and federal agencies are using general duty clauses to enforce workplace safety where conditions indicate a greater risk of workplace violence. Smaller and mid-sized employers may be overwhelmed by the scope of the problem, and the scale of efforts to attempt to minimize risk. The good news is that various strategies and implementation can be adapted to the level of resources available.
Applicable Laws and Trends on Workplace Violence Prevention and Training
Currently, there is no federal standard for workplace violence prevention. However, the Occupational Safety and Health Review Commission (OSHRC) recently ruled that the Occupational Safety and Health Act’s general duty clause requires employers to protect employees from incidents of workplace violence. In Sec’y of Labor v. Integra Health Management, Inc., the Commission held that workplace violence is covered by the general duty where there is a direct nexus between the work being performed and the risk of workplace violence. The Commission also found that the employer failed to provide appropriate training to its employee and to conduct appropriate background checks on its patient.
A further legislative effort in the healthcare and social services context, H.R.1309 – the “Workplace Violence Prevention for Health Care and Social Service Workers Act” – has been proposed in the House and is moving forward.
At the state level, California and Oregon have mandated workplace violence prevention plans in the healthcare industry. Additionally, California is broadening its focus to general industry, with a proposed California regulation mandating comprehensive workplace violence prevention plans drafted and movement afoot to obtain its passage. Given the recent focus on mass shootings, other states and OSHA may soon follow.
So, while currently the specific direction from government is minimal, employers should be wary and vigilant in their efforts to identify threats and minimize risk.
A Scalable, Holistic Approach
As noted above, the root causes, contributing risk factors and sources of workplace violence are varied, so the strategies addressing them need to be holistic, approaching from multiple perspectives.
Written Policies: Both A Sword and A Shield
Strong written policies are the best place to start any attempt to address both compliance and prevention efforts, regardless of the size of employer. Even if a comprehensive and formal workplace violence prevention plan is not mandated for most employers, policies that prohibit harassing behavior, open dialogue about threats, mandated training about identifying risks and de-escalation strategies are helpful in prevention and mitigation and go a long way towards compliance.
First, a zero-tolerance policy toward workplace violence and behaviors that may lead to violence (such as harassment) is a necessary component of any prevention program. A zero-tolerance policy means that each act or threat of violence, regardless of the initiator, will elicit an immediate and firm response. Second, the fear of retaliation for the reporting employee must be abated by an express policy preventing retaliation for reporting incidents or fear of violence and harassment. A program should also include mandatory training of supervisors, at least, and ideally all employees, on threat assessment and de-escalation strategies.
Threat and Risk Assessment: Identify Environmental Risk and Violent Tendencies in the Workplace
While assembling a well-rounded threat assessment team (TAT) is ideal, not all employers have the resources to convene a formal TAT. However, assessment must be performed, no matter the size of employer. Each leadership team must identify the unique risk factors of the workplace, proactively, and determine the plan of action in advance. Environmental risk factors include dim lighting, late-night operations, free access to work areas and lack of visible cameras in public spaces. The solutions to environmental risk may include formal security personnel onsite, secured entry with badges required for workspaces, installation of cameras in public spaces and improved lighting.
Workplace violence is usually the culmination of several phases of aggressive behavior. In the case of employee-initiated violence, the better you are at identifying these phases and responding appropriately, the greater the likelihood of defusing a potentially dangerous situation. Though no single or even few signs are definitively indicative of impending violence, verbal behaviors by employees may include discussion of previous incidents of violence; discussion of involvement with guns or other weapons; blame of others; expression of feeling targeted; disruption in workplace;, intimidating, harassing, or aggressive behavior; multiple conflicts with coworkers or supervisors; and comments that indicate outside stressors (desperation over family, finances, or other personal problems). Identifying physical behavior is critical in both employee-generated violence and third-party violence. Physical behaviors may include clenching fists, sudden change in body language, aggressive posture, slamming objects, pacing or fidgeting and a sudden change in tone of voice.
De-Escalation: How to De-Escalate Potential Crises
Finally, training should include strategies to address specific threats. For example, if verbal behaviors are present, but physical violence does not appear imminent, de-escalation should be the first response. However, without specialized training, employees should never consider the use of physical force as a first response.
First, the employee should calm emotions before interacting with the person, as emotional tension manifests physically and may escalate the situation. Next, the employee should begin to look at the situation and assess the means to intervene safely. The responding employee should assess the situation in the room or space, including proximity of other people, objects and exits. Maintain distance while attempting to defuse the situation. It is important to use a low, dull tone of voice and avoid defensive responses to verbal aggression. If violence appears imminent, back away and find safety, if possible. Only as a last resort should physical force be used.
Though specific legislative mandates for workplace violence prevention plans are not in place for general industry, the focus is shifting, as evidenced by the OSHRC ruling citing an employer under the general duty clause of OSHA. And the risk is real. So, as a best practice, employers of all sizes should look proactively towards prevention. Given the varied causes and sources of violence in the workplace, a holistic approach must be utilized and must include formal policies aimed at identifying and addressing harassing and violent behavior as a preventative measure, as well as training for threat assessment and de-escalation approaches. Each effort can make a difference.
|Sean T. Kingston is an associate with national employment law firm Fisher Phillips in Irvine, Calif. Sean counsels and defends employers in a variety of employment law matters. He may be reached at firstname.lastname@example.org.|