CalOSHA Sets Precedent in Workplace Violence

The mass shooting that took place on May 28 in northern California—resulting in nine transit workers murdered by a fellow worker who then turned the gun on himself—was only the latest in a long string of workplace shootings that have become all too common as the years have gone by.

Reports so far have said the shooter was a longtime employee of the local transit authority who reportedly thought he was treated unfairly by management when it came to work assignments, resented many of his fellow employees, suffered from mood swings and drank heavily. However, it is not known at this time how much management and his co-workers knew about his potential for deadly violence.

We have written in the past about best practices and the legal responsibilities of management in preventing and dealing with employee violence, but this incident also has raised questions from employers about what jurisdiction the California Occupational Safety and Health Administration (Cal/OSHA) has in these situations.

Currently, Cal/OSHA only specifically regulates workplace violence in the healthcare industry, but there is no regulation covering workplace violence in other industries, says attorney Sean Paisan of the Jackson Lewis law firm. Although the state agency has no mandatory duty to respond to such incidents, it does possess adequate authority to investigate them, he points out.

Cal/OSHA does require employers to regularly identify and evaluate workplace hazards, under California’s version of the general duty clause. As these incidents become more prevalent, or if an industry has factors that could increase the risk of violence as detailed in the agency’s guidance for employers, Cal/OSHA may take the position that workplace violence is a recognized hazard that should be mitigated, Paisan says.

In fact, the concern with workplace violence has been around so long that Cal/OSHA’s written guidance on workplace violence dates back to 1995. It cites certain factors that employers should consider when measuring the potential for violence, including:

• Exchange of money.
• Working alone at night and during early morning hours.
• Availability of valued items.
• Guarding money or valuable property.
• Performing public safety functions.
• Working with patients, clients, or similar.
• Employees with a history of assaults or who have exhibited belligerent, intimidating, or threatening behavior.

According to Cal/OSHA, workplaces that identify factors for potential workplace violence should include the following in their Injury and Illness Prevention Plan (IIPP):

• A system for ensuring that employees comply with safe and healthy work practices, including ensuring that all employees, including supervisors and managers, comply with work practices designed to make the workplace more secure and do not engage in threats or physical actions which create a security hazard to other employees, supervisors, or managers in the workplace.
• A system for communicating with employees about workplace security hazards, including a means that employees can use to inform the employer of security hazards at the worksite without fear of reprisal.
• Procedures for identifying workplace security hazards, including scheduled periodic inspections to identify unsafe conditions and work practices whenever the employer is made aware of a new or a previously unrecognized hazard.
• Procedures for investigating occupational injury or illness arising from a workplace assault or threat of assault.
• Procedures for correcting unsafe conditions, work practices and work procedures, including workplace security hazards, and with attention to procedures for protecting employees from physical retaliation for reporting threats.
• Training and instruction about how to recognize workplace security hazards, measures to prevent workplace assaults, and what to do when an assault occurs, including emergency action and post-emergency procedures.

These policies and procedures should also be mirrored in employee handbooks issued by employers to the extent necessary to ensure communication of all of the requirements to workers, Paisan recommends.

A quick search on Google informs us that EHS Today (and its predecessor Occupational Hazards) has been publishing articles about how employers can prevent workplace violence since at least 1998. Let’s hope that we won’t have to wait for another three decades for these horrible incidents to finally come to an end.