By Conn Maciel Carey’s COVID-19 Task Force
In recent months, we have heard too many stories and seen too many viral videos about retail clerks and restaurant employees facing violent attacks and threats from belligerent anti-mask customers who have been refused service or otherwise asked to adhere to the mask mandates issued by the Governors or Health Departments in their states. This includes the tragic tale of the store security guard who was shot and killed in Michigan after telling a customer at a discount store to wear a state-mandated face mask.
Responding to the surge in workplace violence faced by retailers and others in the service industries, on September 1, 2020, the CDC issued guidance on Limiting Workplace Violence Associated with COVID-19 Prevention Policies in Retail and Services Businesses. The new guidance covers how to manage the threat of violence from customers or others who are asked to comply with Governors’ or Health Department mandates or the businesses’ own infection control policies, such as requiring masks to be worn by customers, asking customers to follow social distancing rules, and setting limits on the number of customers allowed inside at one time. Specifically, the guidance discourages retailers from becoming the enforcer in these situations, and includes recommendations like calling 911 and not arguing with a customer who refuses to comply with the rules.
This guidance is vital as we have seen the opposite instruction from such governmental agencies as Michigan OSHA (“MIOSHA”), Oregon OSHA (“OR OSHA”), and the New Mexico Occupational Health and Safety Bureau (“NMOHSB”). Indeed, those state OSH Programs have been issuing citations and shutdown orders for retailers and restaurants who do not refuse service to customers unwilling to wear a face covering onsite. CDC’s guidance will hopefully force these agencies to be sensible about the terrible dilemma they are forcing on businesses and their front line employees who feel the brunt of these enforcement policies that would turn them into law enforcement.
CDC’s guidance starts by defining workplace violence as “violent acts, including physical assaults and threats of assault, directed toward persons at work or on duty.” Specifically, CDC informs that workplace violence includes:
- Threat: verbal, written, and physical expressions that could reasonably be interpreted as intending to cause harm.
- Verbal assault: yelling, swearing, insulting, or bullying another person with the intent of hurting or causing harm. Unlike physical assaults, the intent is not necessarily to cause physical harm, but negative emotions of the person being assaulted.
- Physical assault: hitting, slapping, kicking, pushing, choking, grabbing, or other physical contact with the intent of causing injury or harm.
It also defines “nonviolent response” as a peaceful approach to address a situation in which a person is aggressive or threatening, stating that the technique involves remaining calm, giving a person space, making sure other people are in the area, and not touching the person or trying to forcibly remove them.
The CDC then makes clear that, although threats and assaults can happen in any workplace, they are more likely to occur today in retail, services (e.g., restaurants), and other customer- or client-based businesses. In support of this position, the CDC points to a Current Intelligence Bulletin (“CIB”) issued by the National Institute for Occupational Safety and Health (“NIOSH”) to disseminate new scientific information about occupational hazards, from 1996. The 1996 CIB Abstract states that:
“[w]orkplace violence is clustered in certain occupational settings: For example, the retail trade and service industries account for more than half of workplace homicides and 85% of nonfatal workplace assaults. Taxicab drivers have the highest risk of workplace homicides of any occupational group. Workers in health care, community services, and retail settings are at increased risk of nonfatal assaults.”
Accordingly, CDC makes clear that this new guidance is intended for use by employers and employees in retail, services, and other customer-based businesses.
In terms of what employers should do to prevent workplace violence, CDC recommends:
- Offering customers options to minimize their contact with others and promote social distancing. These options can include curbside pick-up; personal shoppers; home delivery for groceries, food, and other services; and alternative shopping hours.
- Advertising COVID-19 related policies on the business website.
- Putting in place steps to assess and respond to workplace violence. Response will depend on the severity of the violence and on the size and structure of the business. Possible responses may include reporting to a manager or supervisor on-duty, calling security, or calling 911.
- Assigning two workers to work as a team to encourage COVID-19 prevention policies be followed, if staffing permits.
- Identifying a safe area for employees to go to if they feel they are in danger (e.g., a room that locks from the inside, has a second exit route, and has a phone or silent alarm).
- Posting signs that let customers know about policies for wearing masks, social distancing, and the maximum number of people allowed in a business facility.
- Providing employee training on threat recognition, conflict resolution, nonviolent response, and on any other relevant topics related to workplace violence response.
- Remaining aware of and supporting employees and customers if a threatening or violent situation occurs.
- Installing security systems (e.g., panic buttons, cameras, alarms) and training employees on how to use them.
The CDC makes similar types of recommendations for employees, advising them to attend all employer-provided training on how to recognize, avoid, and respond to potentially violent situations; remain aware of and support coworkers and customers if a threatening or violent situation occurs; and not argue with a customer if they make threats or become violent, advising instead that the employee go to a safe area. It also includes recommendations that employees:
- Report perceived threats or acts of violence to their manager or supervisor, following any existing policies that may be in place.
- Not attempt to force anyone who appears upset or violent to follow COVID-19 prevention policies or other policies or practices related to COVID-19 (e.g., limits on number of household or food products).
For additional resources on issues related to COVID-19, please visit Conn Maciel Carey’s COVID-19 Resource Page for an extensive index of frequently asked questions with our answers about HR, employment law, and OSHA regulatory related developments and guidance, as well as COVID-19 recordkeeping and reporting flow charts.
Likewise, subscribe to our Employer Defense Report blog and OSHA Defense Report blog for regular updates about the Labor and Employment Law or OSHA implications of COVID-19 in the workplace. Conn Maciel Carey’s COVID-19 Task Force is monitoring federal, state, and local developments closely and is continuously updating these blogs and the FAQ page with the latest news and resources for employers.