Since its establishment under the Occupational Safety and Health Act of 1970 (OSH Act), the Occupational Safety and Health Administration has promulgated numerous national consensus standards to protect workers from inherent workplace hazards and potential workplace accidents, such as those involving electrocution, falling, chemical exposure, and machinery.
OSHA promulgated these standards via notice and comment rulemaking, which gave the regulated industry an opportunity to provide input. These standards impose a duty upon employers to reduce or eliminate the risk of foreseeable accidents due to physical conditions and processes within the workplace.
Noticeably missing from OSHA’s regulations is the protection of employees from injuries due to intentional or negligent acts of workplace violence by individuals. Recently, however, OSHA has sent a clear message to employers: beware, you may be responsible for failing to protect your employees from the acts of others, no matter how unexpected or how preventable.
As a result, employers must anticipate the unexpected and prepare for the possibility of criminal and negligent acts of workplace violence or injury perpetrated by people outside their employ.
For example, in 2009, OSHA issued a citation to Wal-Mart Stores Inc. for an accident caused by a rushing crowd of people that resulted in the death of an employee at a Long Island store.
In the Wal-Mart case, a worker was crushed by a surging crowd of holiday shoppers upon the opening of a store on “Black Friday” — the day after Thanksgiving when many retail stores drastically slash prices to lure customers. Even though no national consensus standards exist for the control of large crowds at retail establishments, after a hearing, an Administrative Law Judge affirmed the Wal-Mart citation, concluding that Wal-Mart had violated the OSH Act.
Wal-Mart has appealed, and an appeal to the Occupational Safety and Health Review Commission (OSHRC) is pending.
How has OSHA been able to so dramatically shift its enforcement policy without promulgating new standards? The answer lies in § 5(a)(1) of the OSH Act, commonly referred to as the General Duty Clause.
Pursuant to the General Duty Clause, employers are required to provide a place of employment that is free of “recognized hazards” that are causing or are likely to cause death or serious physical harm to employees. In effect, the General Duty Clause is a catch-all provision to address hazards where no particular OSHA standard exists, including in the realm of workplace violence, where OSHA has declined to promulgate standards for decades.
A hazard is “recognized” if the employer or the relevant industry is aware of the hazard’s existence, and feasible abatement measures must exist to eliminate or materially reduce the hazard. These two elements are generally at the center of any defense to a General Duty Clause citation.
For example, OSHA cited Wal-Mart for exposing employees to the hazards of asphyxiation and crushing due to crowd surge, and Wal-Mart argued that these were not “recognized hazards” within the retail industry. OSHA did not attempt to prove that these were recognized hazards within the industry. Instead, OSHA argued that Wal-Mart recognized these hazards by introducing evidence that Black Friday crowd incidents had occurred at the same store where the accident occurred in each of the three prior years.
Regarding the abatement measures, OSHA pointed to subsequent remedial measures employed by Wal-Mart, noting that Wal-Mart instituted effective crowd-control procedures at stores nationwide for the year following the incident.
OSHA recently provided further notice that the agency intends to flex the General Duty Clause’s muscles in the workplace violence area. OSHA issued a new compliance directive on Sept. 8, titled Enforcement Procedures for Investigating or Inspecting Workplace Violence Incidents.
The document provides enforcement guidance to OSHA inspectors in determining whether an employer should be cited for workplace violence incidents. Through the issuance of the enforcement directive, OSHA is putting employers on notice that addressing workplace violence is an agency priority.
Defending a General Duty Clause citation for workplace violence is extremely costly and complex. Wal-Mart spent more than $1 million defending its citation.
Complicating the issue is the lack of consensus standards, which leaves employers now guessing whether the “voluntary” workplace violence guidelines and recommendations published by OSHA are de facto regulations. The fact that many acts of workplace violence are unpreventable, no matter what safeguards are in place, makes this issue even more difficult. The repercussions for employers may include OSHA citations in wrongful death claims.
OSHA initially attempted to use the General Duty Clause to address workplace violence in the early 1990s. However, OSHA stopped issuing citations for incidents of workplace violence after an ALJ in 1995 dismissed a citation against an employer whose workers were assaulted by residents of the apartment complex while at work.
The ALJ in Secretary of Labor v. Megawest Financial, Inc., 17 O.S.H. Cas. 1337, 1995 WL 383233 (Occupational Safety & Health Review Commission 1995), dismissed the citation on the basis that workplace violence was not a recognized hazard in the relevant industry, writing that anticipating and preventing criminal behavior on the part of individuals the employer has no control over is completely different than other hazards addressed by the OSH Act.
The ALJ also noted that there is nothing within the legislative history of the OSH Act to imply that OSHA’s powers include enforcing social behavior, even in the workplace, and extraordinary burdens would be placed on employers to protect employees from random acts of workplace violence. OSHA did not appeal the ALJ’s ruling, possibly to avoid a precedent-setting review by OSHRC, and the agency did not issue workplace violence citations for more than a decade.
The current OSHA administration, however, has established a new enforcement paradigm, making workplace violence a priority. Since 2010 OSHA issued approximately 10 workplace violence citations throughout the country to hospitals and retail establishments, which is consistent with the new compliance directive.
Although the compliance directive applies to all worksites, OSHA specifically identifies health care, social service, and late-night retail establishments as “high risk” industries. Within the directive OSHA identifies several potential workplace violence abatement methods for all workplaces, including administrative office settings. In other words, employers are now on notice that they may be in violation of the General Duty Clause if they lack some or all of these abatement measures.
None of the recent workplace violence citations has come before an ALJ for hearing, and great uncertainty exists as to how the current OSHRC will view the validity of these citations. The recent decision in the Wal-Mart case by a single ALJ could represent a significant shift away from Megawest.
The ALJ in Wal-Mart gave great deference to OSHA’s finding of a “recognized hazard” under the General Duty Clause, as opposed to the ALJ’s highly critical view of OSHA’s attempt to enforce workplace violence in Megawest. It ultimately remains to be seen how successful OSHA’s push to regulate workplace violence through the General Duty Clause, without the promulgation of specific standards, will be.
In the interim, large companies with substantial resources are likely to retain experts to develop extensive policies and procedures to address workplace violence in the event that the unthinkable occurs at their worksite. Absorbing such costs, however, will be extremely burdensome for small companies and nonprofits, especially many hospitals throughout the country that already face substantial fiscal pressures.
Troublingly, there are no guarantees that even the most extensive workplace violence policies and training will head off a citation by OSHA. The costs of defending an OSHA citation from the investigation to the OSHRC and federal circuit court appeal are staggering. Under the current OSHA paradigm, all employers must ask themselves whether they can afford to ignore the issue.
Timothy W. Hoover is a partner with Phillips Lytle LLP and is co-chair of the Firm’s White Collar Criminal Defense and Government Investigations Practice Team. He handles white collar and criminal defense matters in federal and state courts. He can be reached at email@example.com or (716) 504-5754.
Michael C. Murphy is an associate attorney with Phillips Lytle LLP. He is a member of the firm’s Environment and White Collar Criminal Defense and Government Investigations Practice teams. He counsels clients on environmental compliance and permitting, brownfield redevelopment, site remediation, and environmental issues arising out of corporate and commercial real estate transactions. He can be reached at firstname.lastname@example.org or (716) 504-5748.