OSHA has issued its first ever directive on Enforcement Procedures for Investigating or Inspecting Incidents of Workplace Violence (attached below). The directive, CPL 02-01-052 with an effective date of September 8, 2011, establishes uniform procedures for OSHA field staff for responding to incidents and complaints of workplace violence and conducting inspections in industries considered vulnerable to workplace violence, such as healthcare and social service settings, and late-night retail establishments.
In an accompanying press release, OSHA notes, “Workplace violence is a serious recognized occupational hazard, ranking among the top four causes of death in workplaces during the past 15 years. More than 3,000 people died from workplace homicide between 2006 and 2010, according to the Bureau of Labor Statistics (BLS). Additional BLS data indicate that an average of more than 15,000 nonfatal workplace injury cases was reported annually during this time.”
The directive highlights factors that may increase the risk of violence at worksites. Such factors include working with the public or volatile, unstable people. Working alone or in isolated areas may also contribute to the potential for violence. Handling money and valuables, providing services and care, and working where alcohol is served may also impact the likelihood of violence. Additionally, time of day and location of work, such as working late at night or in areas with high crime rates, are also risk factors that should be considered when addressing issues of workplace violence.
According to the OSHA press release, “Studies by the National Institute for Occupational Safety and Health and other organizations show that employers who implement effective safety measures can reduce the incidence of workplace violence. These measures include training employees on workplace violence, encouraging employees to report assaults or threats, and conducting workplace violence hazard analyses. Other methods such as using entrance door detectors or buzzer systems in retail establishments, and providing adequately trained staff, alarms and employee ‘safe rooms’ for use during emergencies in healthcare settings can help minimize risk.”
To assist Mercer ORC Networks Clients, we have developed the following OSHA Workplace Violence Directive Q & A’s:
Why did OSHA publish the Workplace Violence Compliance Directive?
OSHA wanted to establish general enforcement polices and procedures for field offices to follow when conducting inspections related to workplace violence. The directive highlights the steps that compliance officers should take when reviewing incidents of workplace violence and when considering whether to initiate an inspection in industries that OSHA has identified as susceptible to this hazard. The directive is meant to provide guidance on both how an OSHA workplace violence case is developed and which steps Area Offices should take to assist employers in addressing the issue of workplace violence. In addition, the directive provides general policies and procedures that apply when workplace violence is identified as a hazard while conducting an inspection under a national, regional or local emphasis program, especially when conducting inspections at worksites in industries with a high incidence of workplace violence.
Will State Plan states adopt the policies and procedures in this Compliance Directive?
States are strongly encouraged to adopt this directive for use with their general duty clause, state-specific workplace violence standard, or other applicable authority under state law. Although not required, States for the most part have authority equivalent to the Federal general duty provision of Section 5(a)(1) of the OSH Act. Where this authority exists, States should utilize it in an at least as effective manner to address hazards in the workplace associated with workplace violence.
States must submit a notice of intent indicating if the State has or will adopt policies and procedures for enforcement of workplace violence and if so, whether the State’s policies and procedures are or will be identical to or different from the Federal. OSHA will post summary information on the State responses to this instruction on its website.
Under what circumstances does this Directive apply?
This instruction applies to inspections or investigations conducted by OSHA officials (i.e., Compliance Safety and Health Officers (CSHOs) and Regional and National Office Officials) who conduct inspections in response to a complaint of workplace violence or conduct programmed inspections at worksites that are in industries with a high incidence of workplace violence (e.g., healthcare, social service settings and late-night retail establishments). Note: It is not intended to exclude other programmed inspections when workplace violence is uncovered and well documented.
OSHA notes that the directive is not intended to require an OSHA response to every complaint or fatality related to workplace violence or require that citations or notices be issued for every incident inspected or investigated. Instead, it provides general enforcement guidance to be applied in determining whether to make an initial response and/or cite an employer.
An instance of workplace violence is presumed to be work related if it results from an event occurring in the workplace. Employers may be found in violation of the general duty clause if they fail to reduce or eliminate serious recognized hazards. Under this directive, inspectors should therefore gather evidence to demonstrate whether an employer recognized, either individually or through its industry, the existence of a potential workplace violence hazard affecting his or her employees. Furthermore, investigations should focus on the availability to employers of feasible means of preventing or minimizing such hazards.
Why should I read the “Key Terms and Definitions” in the Compliance Directive?
Understanding OSHA’s definitions of Workplace Violence, Types of Workplace Violence, OSHA-Identified High-Risk Industries, Catastrophic Event, and Fatality, are crucial to understanding how the policies and procedures in the Compliance Directive may apply to your worksites.
When will OSHA conduct inspections related to Workplace Violence—how will OSHA address bullying or coworker or personal threats of violence?
1. An inspection shall be considered where there is a complaint, referral, or fatality and/or catastrophic event involving an incident of workplace violence, particularly when it stems from a workplace in industries identified by OSHA as having a potential for workplace violence. These industries include, among others, health care and social service settings and late-night retail establishments.
2. An inspection shall be considered during programmed inspections where there is recognition of the potential for workplace violence in that industry or where the hazard is identified as existing.
3. An inspection generally shall not be considered in response to coworker or personal threats of violence. If an Area Director becomes aware of instances that could be classified as intimidation or bullying, they should consider referring the issue to the appropriate government entity. Referrals could be made to the local police department, the Equal Employment Opportunity Commission, the National Labor Relations Board or OSHA’s Office of Whistleblower Protection.
What criteria will OSHA consider in initiating inspections?
OSHA will consider known risk factors for workplace violence; evidence of employer and/or industry recognition of the potential for workplace violence in OSHA-identified high risk industries such as healthcare and social service settings and late night retail; and the existence of feasible abatement methods to address the hazard. Starting on page 9 of the Compliance Directive, OSHA provides four examples applying these criteria to various types of situations.
If there is a death or hospitalization of three or more employees due to workplace violence, will OSHA be conducting an investigation at the same time as law enforcement authorities?
OSHA Compliance Safety and Health Officers (CSHOs) should not conduct their own inspections at the same time as other law enforcement personnel. If a CSHO arrives during a police investigation, they should stop their investigation, contact the law enforcement commander and request to be notified once the on-site police investigation is complete.
What should I expect during a Workplace Violence-related inspection?
OSHA provides detailed information about procedures for conducting inspections and issuing citations, beginning on page 12 of the directive.
What type of evidence or documentation will OSHA need to establish each element of a general duty clause violation?
Beginning on page 15 of the directive, OSHA provides very specific criteria for establishing that:
a. A serious workplace violence hazard exists and the employer failed to keep its workplace free of hazards to which employees were exposed.
b. The existence of industry and/or employer recognition of the hazard.
c. The workplace violence hazard caused or was likely to cause serious physical harm.
d. The existence of feasible abatement methods and an explanation of how they would materially reduce the hazard.
Will compliance officers receive any special training in properly conducting workplace violence inspections?
Area Directors and Regional Training Coordinators are to ensure that Compliance Officers performing workplace violence inspections are familiar with the most recent guidelines on the subject and are adequately trained on workplace violence prevention, recognition of high-risk situations, and ways to defuse hostile situations. Training should also include instruction on potential workplace risk factors, types of workplace violence, and abatement measures available to address the hazard. CSHOs are also encouraged to review training materials developed by the NIOSH, FBI, and USDA (See Appendix A – Additional Resources). This training is intended to assist CSHOs to understand specific workplace violence incidents, to identify hazard exposure and to assist the employer in abating the hazard.
What is OSHA doing to help employers understand their responsibilities in preventing employee exposure to the hazard of Workplace Violence?
OSHA has developed several guidance documents to assist employers, some of which are listed in Appendices to this directive:
Appendix A -- Additional Resources, includes links to other sources of information on Workplace Violence prevention, including NIOSH, the FBI, and State Laws and Programs to address Workplace Violence.
Appendix B -- Potential Abatement Methods, includes general recommendations for all industries and recommendations aimed at specific high risk workplaces.
Appendix C – Studies of Workplace Violence Abatement Methods.
How will OSHA use the Sample 5(a)(1) Hazard Alert Letters in Appendix D?
If potential workplace violence hazards noted by a CSHO during an inspection are not covered by a particular standard and do not rise to the level of a 5(a)(1) general duty clause violation, a hazard alert letter recommending the implementation of protective measures that address identified hazards shall be considered.
Why should I bother to read Appendix E—Notification Memo Template for the National Office? Isn’t that just about internal OSHA paperwork requirements?
All employers should read this sample memorandum, Notification of Workplace Violence 5(a)(1) Activity, which provides a template for Regional Offices to notify the Assistant Secretary of Labor for OSH of a Regional Office’s intention to issue a General Duty Clause citation. The Area Office will issue the citations only upon National Office approval. Employers will benefit from reading the sample memorandum for its comprehensive review of the information OSHA will use to justify a General Duty Clause citation.