Sadly, workplace violence continues to be a topic that many organizations face, especially those in the health care industry. Indeed, as the news reports serve to remind us all, employees and non-employees often take out their aggression and violent acts within the workplace. As the recent attacks at hospitals in Pittsburgh and in Washington, D.C. demonstrate, there remains a high rate of fatal and nonfatal assaults and violent acts committed within the workplace. One of the struggles that employers face is trying to prevent violent conduct by third-party non employees that are simply beyond the control of the employer.
OSHA Enforcement of Workplace Violence
Employers can face significant liability as a result of workplace violence incidents. For example, while the Occupational Safety and Health Administration (“OSHA”) has no specific standard addressing workplace violence hazards, OSHA has released voluntary guidelines to address these issues. OSHA also offers all employers guidance on preparing for and handling emergencies and on developing a workplace violence program, including the adoption of a zero-tolerance policy. For example, in its “Guidelines for Preventing Workplace Violence for Health Care & Social Service Workers,” OSHA sets forth uniform procedures for responding to incidents and complaints, and conducting inspections in the health care industry, and provides recommendations for workplace violence prevention.
In the absence of a specific standard, OSHA bases its enforcement efforts on the General Duty Clause of the Act. This provision requires employers to furnish employees with a working environment free from hazards (a) that are recognized by the employer or industry as hazardous; (b) that have the potential for causing death or serious physical harm; and (c) that may be abated by feasible means.
Some recent OSHA enforcement actions include a hospital in Connecticut, which was cited for failing to provide adequate safeguards against workplace violence when employees in the psychiatric ward, emergency ward, and general medical floors were injured by violent patients. Similarly, another OSHA inspection identified over 115 instances in which employees of a psychiatric hospital and clinic were assaulted by patients.
OHSA’s Guidelines set forth a number of recommendations that all organizations should implement to prevent workplace violence, including:
Create a Written Zero-Tolerance Workplace Violence Prevention Program
- Conduct Employee Training
- Screen Patients for Potential Violence
- Ensure Security Personnel are Available and Trained
- Implement Systems to Flag Patient’s History of Violence
Criminal Background Checks as a Preventative Measure
One critical aspect of a prevention plan is the implementation of effective background checks of applicants, employees, and contractors in order to ensure that individuals with a violent history are carefully screened from employment. However, employers should be mindful that several federal and state laws restrict the kind of information an employer may be able to obtain concerning an applicant’s qualifications, job abilities, trustworthiness, and propensity towards violence.
For example, a number of states and EEOC policy guidance prohibit most employers from considering an applicant’s arrest record if the arrest did not lead to conviction. Further, private employers may not bar individuals from applying for or holding jobs based upon criminal convictions unless the convictions are job-related or the individual poses a direct threat to public safety or property.
Importantly, with respect to potential discrimination issues, the Equal Employment Opportunity Commission (the “EEOC”) takes the position that because the reliance on arrest and conviction records may have a disparate impact on some protected groups, such records alone cannot be used to routinely exclude persons from employment. However, the EEOC does permit employers to rely on conduct which indicates unsuitability for a particular position as a basis for exclusion, and employers will need to show that that the exclusion is job-related and consistent with business necessity. The EEOC is expected to issue updated guidelines with respect to criminal background checks. As one EEOC Commissioner recently commented at a law conference, the EEOC is closely scrutinizing criminal background checks and will likely require employers to provide some type of notice or conduct an “individualized assessment” with applicants who report criminal convictions on their applications before the employer can bar them from employment. The EEOC hopes that through this “assessment” the employer can then effectively evaluate whether an exclusion based on the conviction is job related and consistent with business necessity. The EEOC’s revised guidelines are expected to be released by the end of April 2012.
Accordingly, by being mindful of workplace violence issues and the potential for liability from OSHA or other federal agencies, employers must be prepared to implement thorough and comprehensive policies and procedures designed to prevent workplace violence. Part and parcel of any preventative plan is a legally enforceable background check policy and a well-trained Human Resources staff to avoid running afoul of any federal or state discrimination law.