Legislation and regulations addressing workplace violence in the United States and British Columbia1

Federal OSHA 

The state and local legislative and regulatory efforts detailed above attempted to address assaults in particular types of workplaces. In contrast, regulatory enforcement efforts by federal OSHA and by some state OSHA plans approved by federal OSHA (most notably Washington and California) have attempted to address the entire spectrum of risk from assault on workers.

Under Section 5(a)(1) of the federal Occupational Safety and Health Act,16 the so-called general duty clause, OSHA is empowered to enforce a general duty on employers to take steps to reduce or eliminate “recognized” workplace hazards likely to cause death or serious physical harm to employees. In a 1992 memorandum, OSHA interpreted this duty of employers to include, or at least not exclude, reducing or eliminating criminal acts of violence that are recognized in a particular employment arena as part of the nature of doing business.17 In contrast, the memorandum notes that the general duty clause would not cover criminal acts of violence not “recognized” as characteristic of employment but that represent random antisocial acts that may occur anywhere. In this memorandum, as a matter of information, OSHA also noted the potential for tort liability of employers for assaults on their employees. Areas of potential liability mentioned included negligence, negligence in hiring and retention, failure to warn potential victims, and failure to repudiate incidents of workplace violence.

From 1993 through 1995, OSHA issued Section 5(a)(1) general duty clause citations to eight private businesses and three federal government establishments.18 Health care or retail businesses were the establishments most frequently inspected. However, OSHA’s use of the general duty clause to address the hazard of assault was curtailed after the agency lost an appeal of a citation issued to a property management company (Secretary v Megawest Financial, Inc.).19

In that case, an employee who worked in a property management office at an apartment complex managed by the employer filed a complaint with OSHA. Police had been called to the office numerous times to remove actual and potential tenants for verbally or physically threatening the office staff. The administrative law judge in the case found that the employer expected the office staff to confront irate residents, but did not train staff to diffuse anger or to lessen the impact of potential incidents until the police arrived. The judge also found that residents who threatened staff seldom, if ever, suffered any consequences. The judge deemed these findings to have satisfied the first element required for a 5(a)(1) citation, namely, “existence of the hazard.” However, the judge ruled that OSHA had not proved the second element required for a general duty clause citation—that the employer or the employer’s industry recognized the risk of assault. The judge ruled that because violence is widespread in society and that society empowers the police to control such conduct, a high standard of proof should be applied to the test for employer recognition of the hazard of assault. The judge did not find that employee fear of assault, even if communicated to the employer, was sufficient to demonstrate employer recognition, nor was the occurrence of a previous injury from a violent incident. These findings constituted OSHA’s primary proof of employer recognition. Additionally, the judge ruled that industry recognition of the hazard was not proved. The judge noted, among other factors, that apartment management was not one of the industries identified by NIOSH in a 1993 publication20 as having a high risk of employee assault.

Since the Megawest decision, OSHA has focused its efforts in preventing workplace violence on developing guidance documents for industries with employees who perform tasks with a recognized risk for assault. In 1996, OSHA released Guidelines for Preventing Workplace Violence for Health Care and Social Service Workers (OSHA Pub. No. 3148) and a fact sheet entitled “Protecting Community Workers Against Violence.” Recommendations for Workplace Violence Prevention Programs in Late-Night Retail Establishments (OSHA Pub. No. 3153) was released in 1998. As noted above in the discussion on taxi ordinances, a fact sheet for taxi and livery drivers was released in May 2000. Development of these publications did not occur without controversy. Some employers and employer organizations have voiced concern that such documents could be used as the basis for future citations under OSHA’s general duty clause.

Efforts by the states 

As do a number of other states with OSHA-approved state plans for job safety and health, Washington and California enforce regulations requiring comprehensive safety programs in all workplaces. California and Washington have interpreted these regulations to require employers to take steps to prevent assault on employees when such events are reasonably foreseeable.

In Washington, workplace inspections by the Washington Industrial Safety and Health Act Services Agency related to violence, but not specifically related to late-night retail crime, primarily address employer compliance with Washington Administrative Code 296-24-040, which requires an accident prevention program including a formal written program.21

In California, the OSHA-approved job safety and health program is housed in the state’s Department of Industrial Relations. Within the department, the Division of Occupational Safety and Health conducts workplace inspections and enforces the state’s occupational safety and health regulations. The division, often referred to as Cal/OSHA, became particularly concerned with the risk of violence faced by employees in 1993. In that year, on the afternoon of July 1, a man made his way to the 34th-floor offices of a law firm that had, at one time years before, handled a case with which he had been involved. The man shot and killed eight workers and bystanders before taking his own life.22 In 1994, the Bureau of Labor Statistics’ CFOI indicated that workplace homicides in California had increased from 197 in 1992 to 243 in 1993, a 25% increase. In response to the resulting increased interest in preventing workplace assaults, Cal/OSHA convened two well-attended conferences on the subject in 1994. Those conferences helped to inform development of the Cal/OSHA Guidelines for Workplace Security (last revised March 30, 1995).23 These guidelines continue to guide the Cal/OSHA effort.

As in Washington State, and as detailed in the guidelines, Cal/OSHA’s main enforcement tool in workplace violence inspections is to require a general safety program, termed an Injury and Illness Prevention Program.24 The Injury and Illness Prevention Program consists of eight elements, including requirements for a written program, identification of responsibilities for the program, systems for hazard recognition and correction, accident investigation, two-way communication with employees, and employee training.

Developing a classification system for assaults occurring in the workplace was the Cal/OSHA effort’s key contribution to clarifying thinking and discussion on the subject.25 Using the traditional public health approach of focusing on the hazardous agent—in this case the perpetrator of the assault—the Cal/OSHA system described three “types” of workplace violence events based on the relationship of the perpetrator to the workplace:

Following development of the Cal/OSHA classification system, some authors have chosen to separate events perpetrated by current or former employees of an establishment from those perpetrated by an estranged spouse or acquaintance into Types III and IV, respectively.26

The Cal/OSHA system proved crucial to facilitating meaningful discussion about workplace assault. Before development and general acceptance of the Cal/OSHA classification system, discussions of workplace violence often quickly degenerated into confusion over whether participants were addressing retail robbery, assaults on service workers, or assaults by coworkers and estranged spouses. The first Conference on Workplace Security held by Cal/OSHA on April 13, 1994, highlighted this problem. Development of the incident classification system in the interim greatly facilitated discussion at the second Cal/OSHA conference held on November 3, 1994. The two conferences on the subject that Cal/OSHA organized in 1994 informed the development and implementation of a special pilot enforcement and incident-response effort. The pilot program, detailed in the Cal/OSHA “Guidelines for Workplace Security,” was intended both as a regulatory enforcement response to the problem of workplace assault and as a means of gathering information on the occurrence and prevention of workplace violence, particularly homicide.

During the Cal/OSHA Workplace Security pilot inspection program, which started in 1993, approximately 250 workplace inspections were initiated. Researchers have analyzed data associated with 237 of those inspections.26 Industries in which workplace inspections were conducted included health care, which accounted for 17% of inspections, retail establishments (17%), security/police (11%), service industries (9%), restaurant (9%), manufacturing (8%), transportation (7%), education (6%), government (6%), professional (6%), and property management (2%). Among the 237 inspections conducted, 40% were for Type I incidents or risk, 30% were for Type II incidents or risk, 29% for Type III, with about 1% unspecified.

Of the 237 Cal/OSHA inspections studied, 56 businesses received citations related to workplace violence. The vast majority of these citations were issued with respect to the required Injury and Illness Prevention Program. However, a handful of citations were also given for violations of specific Cal/OSHA requirements potentially applicable to prevention of workplace assault, including maintenance of exits and illumination, requirements for employee alarm systems, and development and implementation of an emergency action plan. A number of citations were also given for failure to properly record or report worker injuries resulting from assault.

After the pilot inspection program concluded, Cal/OSHA continued to respond to employee complaints related to workplace violence. In recent years, with a decline in these types of complaints, the number of inspections related to workplace violence conducted by Cal/OSHA decreased from 43 in 1997, to 33 in 1998, to 22 in 1999 (personal communication, Cal/OSHA Program Office, Division of Occupational Safety and Health, California Department of Industrial Relations, San Francisco, CA, June 2000).

The British Columbia approach 

In 1993, the Canadian province of British Columbia implemented regulations that address prevention of workplace violence.27 These regulations require employers to perform a risk assessment in any workplace in which a risk of injury to workers from violence arising out of their employment may be present. The risk assessment must consider previous experience in that workplace, occupational experience in similar workplaces, and the location and circumstances in which work will take place.

If the required assessment identifies a risk of worker injury from violence, the employer must establish policies and procedures to minimize or, if possible, to eliminate the risk. The regulations include a requirement for worker training, including informing workers of persons whom they are likely to encounter in their work who have a history of violent behavior. Finally, the employer must report incidents of violence, including threatening statements and other events with a potential for injury, to the Workers’ Compensation Board of British Columbia. The employer must also investigate as required for other workplace hazards. Prompt corrective action is required to prevent recurrence of similar incidents.

Of note, the British Columbia regulations discussed above specifically exclude coverage of violence and threats by other workers in the workplace. A more general prohibition against “improper activity or behavior” covers such incidents.28