OSHA off-base with workplace violence proposal

Is it right for OSHA to penalize an employer for an incident that was completely beyond the company’s ability to prevent?

If that seems wrong to you, I agree. But that is exactly where OSHA is heading with a new directive issued to its inspectors.

It instructs those inspectors how to hold employers responsible under the General Duty clause for instances of workplace violence not even committed by one of the company’s employees.

In an excellent article about the directive in the Washington Examiner, Michael Billock, a labor and employment lawyer at Bond, Schoeneck & King PLLC in Albany, N.Y., creates a hypothetical situation that demonstrates where this could lead:

“Picture this scenario: One day, in a large hospital with thousands of patient visits per year, the unthinkable occurs — while a doctor explains unfortunate news to a patient’s family, a relative pulls a gun and mortally wounds the doctor.

“That hypothetical scenario would be terrible enough. But now imagine that, in the midst of the hospital trying to recover from this tragedy, a federal Occupational Safety and Health Administration investigator arrives to conduct an inspection.

“After months of interviewing employees, reviewing documents, and taking videotaped tours of the hospital, OSHA issues the hospital a citation and fine (!) on the basis that the violence was foreseeable and the hospital did not do enough to prevent it.”

Billock goes on to point out that General Duty clause was not intended to be used this way and that the directive provides employers no clue about what to do to avoid a citation.

This is yet another instance of overreaching by the “New” OSHA. Even though the agency appeared to be pulling back earlier this year to some degree on issues like noise, ergonomics and a proposed Injury and Illness Prevention Program, it is now clear that the agency intends to keep its overly aggressive approach in place. Proposals on noise and I2P2 are back and now OSHA is going even further with this misguided approach to workplace violence.

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