On September 8, 2011, the Occupational Safety and Health Administration (OSHA) issued its first ever Compliance Directive to address workplace violence. In the past, OSHA had issued citations to employers for exposing their employees to workplace violence -- until Administrative Law Judge Nancy Spies issued her decision in the Megawest Financial case in 1995. In that case, OSHA attempted to use the General Duty Clause of the Occupational Safety and Health Act—which imposes a duty upon employers to keep their workplaces free of “recognized hazards”—to argue that because there had been earlier attacks on employees by tenants of an apartment complex, the employer was liable when employees were again attacked by tenants. Judge Spies rejected that argument, finding the Act was not intended to “police social behavior” and that employers may reasonably believe “that the institution to which society has traditionally relegated control of violent criminal conduct, i.e., the police, can appropriately handle the [violent criminal] conduct.” Since then, OSHA has issued few workplace violence citations.
Judge Spies is now retired, and OSHA is taking another bite at the apple. OSHA’s new directive contains a laundry list of recommendations for “all industries and administrative workplaces.” These include conducting a workplace violence hazard analysis, revising the physical plan of the workplace, training employees, and implementing “engineering controls” that may even include hiring a security consultant.
Employers are required to keep their workplace free of “recognized hazards,” but inherent in that requirement is the assumption that employers can control the condition for which it may be cited. For this reason, OSHA’s attempt to hold employers liable for violent, criminal acts of third parties—who are beyond the control of employers—is troubling.