Tuesday, 14 November 2017 19:33

Are There Any “Safe Spaces” at Work?

Written by George D. Adams

On the spectrum of workplace violence, shootings and other extreme incidents are rare but devastating. As recent terrorist attacks show, employees can even be collateral victims of “indirect” extreme violence.  Work rules can discourage minor acts of workplace violence, but someone who is willing to murder people will ignore work rules and “no guns” signs. There are no “safe spaces” in the workplace, but employers can make workplaces safer.

The Law

No federal law requires employers to take any specific actions regarding workplace violence. Even the Occupational Safety and Health Act has no specific requirements, although OSHA’s website cautions:

An employer that has experienced acts of workplace violence, or becomes aware of threats, intimidation, or other indicators showing that the potential for violence in the workplace exists, would be on notice of the risk of workplace violence and should implement a workplace violence prevention program combined with engineering controls, administrative controls, and training.

https://www.osha.gov/SLTC/workplaceviolence/standards.html (emphasis added).  By this measure, almost every employer would need a workplace violence prevention program. 

Workers’ compensation laws usually provide the exclusive remedy for injuries resulting from workplace violence (even shootings), but do not require prophylactic action.  Some laws actually can make it harder to prevent workplace violence (e.g., the ADA can create “regarded as” liability for employers seeking to preempt violence by “crazy” employees).  Even if no law requires a workplace violence prevention program, other considerations should. 

Other Considerations

After someone is killed is not the time to consider what you could have done to prevent it, or to consider how to keep your business running. Not all workplace violence is preventable, but just hoping for the best or adopting a boiler-plate policy is imprudent. 

Employers have emergency action plans for preventing, responding to, and recovering from fires, earthquakes, and other natural disasters. Although extreme workplace violence is “unnatural,” the results can be equally disastrous and employers should plan accordingly.

Good programs address security, education, deterrence, intervention, emergency response, and recovery. Most plans begin with a risk assessment and a risk/benefit analysis, to devise a program appropriate for the circumstances. For example, a bank in a high crime area needs a more robust plan than a dress shop in a “safe” area. Security fences and armed guards would be impractical and unnecessary for most employers, but simply declaring your workplace a “gun free zone” is unrealistic. Shootings often occur in gun free zones—because they are “safe spaces” for attackers. 

Employees can be taught to recognize signs of potential violence, such as threats, over-reaction to minor slights, bullying, and domestic relations problems. Managers can be trained to analyze employees’ complaints for signs of anger, aggression, and depression, and to intervene when appropriate. Policies can require employees to notify HR when they seek or obtain a protective order.  Distributing photographs of the restrained person to security personnel, receptionists, and others likely to encounter the person also can help. Those personnel can be trained to isolate the individual, notify designated managers, call the police, and take other appropriate action.

Other precautionary measures, such as having security personnel nearby during confrontational meetings with potentially violent employees, can deter escalation. Monitoring terminated employees after they leave the worksite also can sometimes prevent workplace violence. 

An effective program also explains how to deal with a so-called “active shooter” (run, hide, or fight). Such incidents are unpredictable and often end before police arrive. People are confused and terrified during and after these events. Employers must be prepared to deal with first responders, the media, employees, and employees’ families—all while keeping the business running. To be effective, a plan must be developed and practiced before the worst case scenario occurs. 

The shooter response plan should identify escape routes and assign specific managers to call the authorities, rally employees in gathering areas, and manage other critical issues. If some employees must remain at their stations to oversee critical operations, the plan should include measures to protect them from the attacker (e.g., installing lockable security doors with small windows). First responders should have a copy of the floor plan and universal access keys or cards, and should participate in preparing and practicing your plan. These are just a few elements of an effective workplace violence prevention program.

Conclusion

Extreme workplace violence can be as devastating as an earthquake, yet many employers have no plan for dealing with these human disasters. There is no perfect or “one size fits all” workplace violence prevention program, but employers can and should take reasonable steps to prevent, prepare for, and recover from these disasters just like any other. 

This article presents an overview of certain legal issues. It is not, and cannot be construed as, legal advice. For more information, contact Fisher Phillips’ Louisville, Kentucky office (502-561-3990).

George D. Adams is a partner in the Louisville office of Fisher Phillips; for 17 years, his practice has exclusively been devoted to representing a wide variety of employers in labor and employment law matters.

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