Workplace violence guidelines remain in place under Trump administration

Employers, particularly in the retail and health care sectors, should continue to take steps to prevent workplace violence as guidance documents issued under the Obama administration have not been rescinded by the Trump administration.

About 18% of violent crimes are committed in the workplace and about 10% of the 4,836 workplace fatalities that occurred in the workplace in 2015 were homicides, according to data from the Bureau of Labor Statistics.

“That’s a real alarming number and this explains why fed (U.S. Occupational Safety and Health Administration) and state enforcement agencies have become more involved on workplace violence issues,” Andrew Sommer, a San Francisco-based partner with Conn Maciel Carey P.L.L.C., said during a firm webinar on Tuesday.

Just last month, OSHA issued Pembroke, Massachusetts-based UHS of Westwood Pembroke Inc., doing business as Lowell Treatment Center, a notification for failure to abate a violation involving workplace violence after previously finding a serious violation related to the same hazards in May 2015. The behavioral health facility faces $207,690 in proposed penalties after OSHA regulators determined that the facility’s employees remain vulnerable to workplace violence risks. 

“There is no specific regulation that governs workplace violence under fed OSHA,” he said. “This has not stood in the way of fed OSHA enforcing this issue. What fed OSHA has done is relied on the general duty clause” of the Occupational Safety and Health Act.

The agency has used industry guidance, employer policies and its own guidance on workplace violence to demonstrate that the hazard is recognized in the industry — a necessary component for a citation under the general duty clause.

“That’s quite a flawed analysis by fed OSHA because this is not rulemaking — this is merely guidance and that’s not to say their own guidance should place employers on notice of a hazard,” Mr. Sommer said.

“Fed OSHA has increasingly used guidance as a mechanism to address workplace violence issues in part because there is no need for the proper notice and comment period to stakeholders for rulemaking and there’s no particular analysis in play,” he continued. “Under the Obama administration, there were a number of guidance documents issued relatively informally that remain in effect under the Trump administration.”

The agency has focused on enforcement in two industry sectors due to the high risk of workplace violence: retail and health care. About 25% of workplace homicides occur in retail, mostly at convenience stores, gas stations and liquor stores, as these workers often work “alone in isolated work locations exchanging money,” he said.

Meanwhile, 70% of 23,000 known assaults happen in the health care sector. However, the Trump administration moved an Obama-era proposal for a federal standard to prevent workplace violence in health care and social assistance to its long-term actions list, meaning it has “essentially stalled,” Mr. Sommer said.

“There’s no indication it will be enacted anytime soon,” he said. “The takeaway here is that, for now, from a fed OSHA perspective, employers should expect that any enforcement actions will revolve around the general duty clause.”

Employers can also expect states with prevention program requirements to use those as a basis for potential citations for failing to adequately address workplace violence risks, Mr. Sommer said. In April, a standard to specifically address workplace violence in the health care sector took effect in California and requires that health care employers create a violence prevention plan, keep a comprehensive record of violent incidents and provide workplace violence training.

Fewer than 30% of private employers had workplace violence prevention programs and only about 20% provided workplace violence prevention training, according to the BLS.

“I think this is becoming more and more important and more people are having this stand-alone written policy and we recommend it,” said Kara Maciel, a Washington-based founding partner and chair of the labor and employment practice group of Conn Maciel Carey. “Zero tolerance for workplace violence, having workplace violence controls, record keeping and you want to train your employees on that.”