The recent instances of violence in the workplace remind us of the complex task facing employers. Employers must maintain a safe work environment for employees while operating within the parameters of the many laws that protect employment interests. Reportedly, every year, approximately 2 million Americans fall victim to workplace violence. According to OSHA and the Bureau of Labor Statistics Census of Fatal Occupational Injuries, homicide is the fourth highest cause of workplace fatalities in the United States. The scope of what and how workplace violence may occur is broad. It can involve conduct between employees, employees and customers, and employees and non-employees (e.g. a spouse). Given the serious nature and risk associated with workplace violence incidents, it is imperative that employers take steps to prevent such acts from occurring.
In some instances the individual that threatens or commits violent acts at work suffers from medical conditions that are protected by law. For example, mental health conditions such as depression and anxiety are covered under FMLA, which allows an employee to take paid leave for up to twelve weeks in a year, and the ADA, which protects employees and applicants from employment discipline and harassment. Additionally, some states, such as New York, have enumerated as a protected class, domestic violence victims. Thus, the quandary that employers face is when to act and the appropriate response to actual or threatened violence in the workplace.
The issue of employment protections for individuals with a mental health condition has recently received attention from the EEOC. On December 12, 2016, the EEOC issued a publication entitled “Depression, PTSD & Other Mental Health Conditions in the Workplace: Your Legal Rights. An employer looks to take any action based upon safety would need to be able to establish a “direct threat” or that the employee poses a “significant risk of substantial harm to self or others”. The December 12th publication emphasizes that employers must refrain from taking action based upon “myths or stereotypes.”
Examples of an employer’s response in this context are two 2015 decisions: Mayo v. PCC Structurals, Inc., 795 F.3d 941 (9th Cir. 2015) and Secretary of Labor v. Integra Health Management Inc., OSHRC No. 13-1124 (June 22, 2015).
In Mayo, an employee was terminated after making threats to kill his co-workers. The employee’s lawsuit for employment discrimination was ultimately dismissed. In Integra, a social service coordinator was fatally stabbed while visiting a client’s home. The employee had made several comments in her reports that the client made her feel unsafe, but the employer failed to act in response. As a result OSHA issued multiple citations to the employer claiming a violation of the “General Duty Clause.” However, employees have no private right of action for workplace violence incidents pursuant to OSHA.
Employers can face liability for violence based upon common law tort or respondeat superior. Because employers can only be liable based upon respondeat superior where an employee is acting within the scope of her duties, however, most often claims are brought pursuant to theories of negligence; i.e. negligent hiring, negligent supervision or negligent retention of employees
So what is an employer to do? Be proactive. Start by crafting a written workplace violence prevention policy that includes: 1) management’s commitment to protecting employees from workplace violence; 2) a “zero tolerance” policy toward threats or acts of violence, 3) the means and methods for employees to notify the employer of perceived threats; 4) the means to promptly investigate any threats or violent acts; 5) discipline for violations of the policy. Employers should set up a team of qualified individuals either internally or externally, to respond when needed. Employers should also considered creating and/or subscribing to Employee Assistance Programs that are available to their employees and the family member of employees. Finally, employers should train managers and employees on how to identity signs and symptoms of employee behavior which may predict potential violence and go through active shooter drills so employees know what to do if such a situation arises.