Workplace Violence: Employer Liability in Virginia and Potential VOSH Penalties

By Daniel C. Deacon and Kara M. Maciel

Workplace violence has become a serious issue for employers throughout the United States. In the wake of the recent mass shootings that occurred in San Bernardino, CA and Hesston, KA, both of which occurred at least in part at an employer’s workplace, it is important for employers to be aware of the potential for violence in the workplace and ways in which it can be prevented.  Although these two incidents may not have been foreseeable or preventable,WPV Image these incidents will nevertheless bring more attention to this issue, including by litigants and regulators.

Workplace violence can be categorized in three ways:

  1. Violence by an employee;
  2. Violence by a stranger; or
  3. Violence by a known third party.

Depending on the facts of each incident, an employer may be faced with a lawsuit and/or a regulatory investigation and enforcement action.  In Virginia, the law generally shields employers from liability for physical harm caused to employees or customers by the violent acts of co-employees or third parties.  However, even if an employer evades civil liability, employers may still be subject to an investigation by the Virginia Department of Labor and Industry, and incur significant civil penalties.

Given the potential for both a civil suit and a government investigation, employers should implement workplace policies and programs that help keep the workplace safe and free of workplace violence.  This article details the potential legal liabilities and penalties employers may incur from workplace violence incidents, and provides guidance on how prevent such incidents or liabilities from occurring. Continue reading

Workplace Violence: No Longer Just a Police Issue [Webinar Recording]

On Tuesday, November 10, 2015, Eric J. Conn and Kara M. Maciel delivered a webinar regarding “Workplace Violence: No Longer Just a Police Issue.”

Every year, approximately 10% of workplace fatalities result from intentional violent acts.  The prevalence of workplace violence is even more alarming when you take into account non-fatal assaults and threats of violence.  This particular workplace hazard is uniquely challenging because the threat is often from outside the workplace, including non-employee third parties.  Regardless, workplace violence has also become a hot button enforcement issue for OSHA, citing employers under the OSH Act’s catch-all General Duty Clause for employers who do not do enough to protect their employees from violent acts.  Beyond OSHA, workplace violence can also implicate other employment laws.  For example, if violent acts or threats occur because of symptoms of an employee’s disability, the handling of discipline and termination gets tricky under the ADA.  Likewise, Workplace Violence Webinar Cover SlideHR issues related background checks and negligent hiring could also contribute to civil liability.

Therefore, it is important for employers to develop and implement an effective Workplace Violence Prevention Program and appropriate hiring practices.  This webinar advised employers about their legal obligations to address workplace violence and the implications if they fail to do so.  It also provided employers with the knowledge and tools they need to Continue reading

OSHA’s New “Non-Mandatory” Workplace Violence Guidance for Healthcare Employers

By Eric J. Conn and Kathryn M. McMahon

In April 2015, OSHA released new “Guidelines for Preventing Workplace Violence for Health Care and Social Services Workers,” reflecting a few years of work updating an existing set of guidelines in this area from 2004.  The development of this update was driven by OSHA’s concern over the number of workplace violence incidents in the hospital, nursing care, and residential home health industries. 2013 BLS statistics show thatWorkplace Violence 70% of the 23,000 known workplace assaults occurred in the health care / social services industries.  The new Guidelines incorporate research that has been conducted since 2004 into the causes of workplace violence in health care settings, risk factors that accompany working with patients or clients who display violent behavior, and the appropriate preventive measures that can be taken.

OSHA’s Guidelines set forth a number of recommendations for healthcare organizations to consider implementing to prevent workplace violence, including:

  • Create a Written Zero-Tolerance Workplace Violence Prevention Program
  • Conduct Employee Training
  • Screen Patients for Potential Violence
  • Ensure Security Personnel are Available and Trained
  • Implement System to Flag Patient’s History of Violence

The new Guidelines are not so different in substance from the prior guidelines.  The publication generally follows the same outline and presents a similar set of recommendations to what was included in the 2004 publication.  Specifically, OSHA continues to emphasize the importance of developing a comprehensive written workplace violence prevention program.  The program elements recommended include the same elements listed in the 2004 guidelines (and virtually identical to the elements included in the original 1996 guidelines), which mimic the five basic components of an injury and illness prevention program:

  1. Management commitment and worker participation;
  2. Worksite analysis and hazard identification;
  3. Hazard prevention and control;
  4. Safety and health training; and
  5. Recordkeeping and program evaluation.

The biggest difference between the new version and the 2004 version is Continue reading