OSHA Issues New Directive Regarding Investigations of Alleged Workplace Violence

By:  Sheila T. Kerwin and Lisa M. Schmid

On September 8, 2011, OSHA issued a compliance directive addressing investigations of alleged incidents of workplace violence. (OSHA Directive Number CPL 02-01-052.)  The directive establishes OSHA’s general enforcement policies and procedures for field officers to utilize when conducting inspections and issuing citations related to workplace violence.  The directive instructs investigators to analyze two issues in determining whether to conduct an investigation in relation to workplace violence:  1) Whether the employer and/or industry recognized or should have recognized the potential risk for workplace violence; and 2) Whether feasible methods exist for the employer to eliminate or minimize the risk.  Regardless of this analysis, OSHA will generally conduct an inspection when there is a fatality or when three or more employees are hospitalized due to workplace violence.

In determining whether the employer or industry recognized or should have recognized the risk, OSHA investigators will assess whether known risk factors for workplace violence existed, including:

  • Working with unstable or volatile persons in healthcare, social service or criminal justice settings;
  • Working alone or in small numbers;
  • Working late at night or during early morning hours;
  • Working in high crime areas;
  • Work involving the guarding of valuable property or possessions;
  • Working in community-based settings, such as community mental health clinics, drug abuse treatment clinics, pharmacies, community-care facilities and long-term care facilities;
  • Exchanging money in certain financial institutions;
  • Delivering passengers, goods or services; and
  • Having a mobile workplace such as a taxicab.

Investigators will also look for evidence that alerted the employer to the risk of workplace violence, including employee complaints about the risk of violence, previous threats or previous incidents of workplace violence and characteristics of the employer’s worksite that make it susceptible to violence (e.g., isolated, unlit areas).

Upon determining that an employer knew or should have known of the potential risk for workplace violence, the investigator will then analyze whether feasible methods existed for the employer to minimize or eliminate the risk.  In making this assessment, the investigator will determine if there were known measures for employers to reduce the risk (e.g., employing two or more people during a late-night shift).  Per the examples provided in the directive, a lack of a known risk and/or a feasible method to eliminate or minimize the risk decreases the likelihood of inspection and citation.

In light of the directive, there are steps employers can and should take to eliminate or minimize the risk of workplace violence and to decrease the likelihood of OSHA investigations or citations.  Those steps include, but are not necessarily limited to, the following:

  • Conduct an analysis of your workplace to determine whether the potential for workplace violence exists.  In doing so, take into account both employer-known and industry-known risks as well as previous complaints, threats, and instances of violence and your facility and its surrounding areas.
  • Determine whether feasible methods of abatement exist for the identified risks and if so, implement those methods.  Some changes may require little effort, but provide significant protection, including repairing broken window or door locks, changing light bulbs or adding light, or adding a motion detector light.  Employers may also consider changes in staffing levels, operating hours, adding security staff, installing an alarm system, and implementing training programs for employees on recognizing and minimizing workplace violence risks.  Finally, employers should also consider whether implementation of a formal workplace violence prevention program is appropriate.
  • Document in writing and maintain records of all incidents of workplace violence and your efforts to eliminate or minimize its risk.  This step is especially important if OSHA decides to conduct an investigation, as it will request and comb through workers compensation claim documents, accident reports, insurance claims or reports, police or security company reports and any other potentially relevant documents.

For further information or advice about this directive, please contact Nilan Johnson Lewis.