A 10-step workplace violence prevention and liability management plan

This will help you prevent workplace violence and manage your medical office’s liability risks.

You don’t need us to tell you that violence in the workplace has become a major societal problem. You probably also recognize that taking steps to keep violence out of your own workplace is not only a moral but a legal imperative. But what you may not know is exactly how to go about preventing workplace violence. And that’s why we created this 10-step plan for you (as well as a online Model Policy you can use to implement it).

The law of workplace violence

What law says an employer must take steps to prevent workplace violence? Answer: Failing to prevent violence in the workplace can make an employer, including your medical office, liable under at least four different laws:

1. U.S. OSHA laws, which impose a “general duty” on employers to prevent “recognized hazards,” potentially including violence;
2. OSHA laws in some states, including California, Washington, and New York (for public employers), which impose more detailed and specific workplace violence prevention duties on employers;
3. Negligence law, which could result in your having to pay money damages for failing to take reasonable steps to prevent a victim from being attacked at your medical office (and/or for negligently hiring or retaining a violent person who does the attacking); and/or
4. Employment discrimination laws to the extent the victim is an employee targeted on the basis of race, religion, sex, age or other personal characteristic protected by civil rights laws.

10 steps to take to manage your liability risks

There are 10 basic things an employer is expected to do to prevent violence at its workplace:

Step 1: Perform a workplace violence hazard assessment

The workplace violence hazard assessment must be carried out by a competent person from within or outside your medical office and include:

• Assessment of hazards posed by the physical environment;
• Assessment of hazards posed by the nature of the work, e.g., whether employees need to deal with violent or mentally disturbed patients;
• Analysis of history of violent incidents at your workplace in the past three years; and
• Surveying your employees and supervisors to find out if they think there are risks of violence at your workplace.

Step 2: Publish a workplace violence policy statement

The next phase is to establish a workplace violence prevention program to address any violence hazards you identify in your assessment. The first step in implementing a prevention program is for management to issue an appropriate written workplace violence policy statement. Like the Model Policy Statement below, yours should:

• Acknowledge the rights of employees to work in a violence-free workplace;
• Express management’s commitment to provide a violence-free workplace; invest protect all workers from violence at work;
• Define what you mean by workplace violence;
• Outline your medical office’s workplace violence prevention program;
• Reassure employees of their right to report incidents or threats of violence without reprisal or retaliation; and
• Clearly state that acts or threats of violence will not be tolerated and that those who author them will be held accountable and face discipline up to and including termination.

Step 3: Implement physical and engineering controls

As with other workplace hazards, the preferred way to control violence hazards is to use engineer controls to eliminate or significantly reduce them, which might include:

• Bullet-proof glass partitions, fences, and other physical barriers;
• Locks or buzzer systems on doors;
• Security cameras;
• Alarm systems, panic buttons, and other signaling devices; and
• Curved mirrors in hallways or concealed areas.

Step 4: Implement safe work procedures

Where totally eliminating violence hazards isn’t feasible, you need to adopt safe work procedures for your employees to follow when carrying out potentially dangerous activities like handling cash, dealing with mentally unstable patients, working alone at night or even traveling to and from work.

Step 5: Give employees a way to call for immediate help

You need to ensure employees can call for help in case they’re confronted with violence by providing phones or other emergency communications equipment, contact information, and instructions on how to get help fast.

Step 6: Establish system for employees to report violence

There must be a way for employees to report violence. You may also need a confidentiality and non-retaliation policy to ensure that employees actually report acts and threats of violence.

Step 7: Establish procedures to investigate violence

Your program must include procedures for investigating reports of workplace violence filed by employees in a prompt, comprehensive and fair manner.

Step 8: Discipline employees for violence

You must have and properly implement a policy you can use to hold employees accountable for acts of violence. The Model Policy below includes a section providing for discipline that you can adapt.

Step 9: Deliver workplace violence training

You must provide appropriate workplace violence training and instruction to any employees who are at risk of violence before they encounter such risks; training should address, at a minimum:

• The actual violence hazards to which the employee is exposed;
• What the employee should do to protect himself/herself from those hazards; and
• How to report threats or acts of violence.

Step 10: Monitor your prevention program

You should review your workplace violence prevention program at least once a year and:

• Immediately after incidents of violence occur at your office;
• Before making physical alterations to your office or site (or work operations) that may create new risks or alter the risk dynamic on which your current program is based; and/or
• Immediately after any other red flags arise that call into question the effectiveness of your current prevention program.

The law of workplace violence

5 ways you can be liable for workplace violence

Failure to prevent an act of violence from occurring at your workplace can result in your medical office’s being liable under one or more of the following five laws:

U.S. OSHA

The U.S. Occupational Safety and Health Administration (OSHA) doesn’t have a specific regulation or “standard” for workplace violence the way it does for other workplace hazards like chemicals, electricity, and fall risks. But what OSHA does have is a section that requires employers to keep the workplace “free from recognized hazards” that can cause death or serious injury. This obligation, which comes from Sec. 5(a)(1) of the Occupational Safety and Health Act, is called the “general duty clause.”

How do we know that the general duty clause applies to workplace violence?

Answer: Because OSHA has told us it does. As far back as 1992, OSHA issued an Interpretation Letter stating that, in some circumstances, the risk of violence can be one of the “recognized hazards” that employers have to manage under the general duty clause. The bottom line: OSHA can cite you for not doing enough to prevent workplace violence.

2. State OSHA laws

27 states have adopted their own state OSHA laws. Rule: State OSHA laws must be at least as stringent as federal standards. In most cases, state OSHA laws are actually stricter than federal requirements. One example: California, Washington, and New York (for public employers) OSHA laws do include regulations specifically addressing workplace violence rather than rely on the general duty clause to hold employers feet to the fire. In addition, many states (including those that do follow federal OSHA) have adopted separate workplace violence laws covering different operations or groups, such as health care, late night convenience stores and employers whose employees work alone.

3. Negligence law

Not all safety laws come from statutes and regulations. Some are rooted in what’s called “common law,” or law made by judges one case at a time. Each decision serves as precedent that judges look to in deciding subsequent cases. Over time, these cases form a body of law with rules of its own.

One example of common law that everybody is familiar is called negligence. To win a negligence lawsuit and collect money damages, a victim—called a plaintiff—must prove four things:

1. The defendant owed him a duty of reasonable care;
2. The defendant didn’t meet that duty of reasonable care;
3. The plaintiff suffered an injury as a result of that breach of the duty of care; and
4. Money damages can compensate the plaintiff for the injury.

Employees who get hurt on the job generally aren’t allowed to sue their employers for negligence because of the workers’ compensation trade-off: in exchange for automatic coverage of work-related injuries regardless of fault, injured employees give up their right to sue their employers for negligence.

But workers’ comp may not cover your medical office; and even if it does, the workers’ comp bar doesn’t apply to third parties injured by an employee or at an employer’s worksite, including as a result of violence. Third party victims of violence could make three kinds of negligence claims against your medical office:

General negligence: You were negligent in not preventing the attack;

Negligent hiring: You were negligent in hiring the attacker (if the assailant is one of your employees); and/or

Negligent retention: You were negligent to keep the violent employee who committed the attack on your payroll.

4. Employment discrimination laws

Federal civil rights laws ban employers from discriminating against employees or prospective employees on the basis of disability, family status, gender, race, religion, and other personal characteristics. The obligation to prevent discrimination includes providing all employees a work environment free of harassment and abuse.

Violence or harassment directed at an employee may be deemed a form of discrimination to the extent it’s based on one of the above protected characteristic. For example, EEOC laws bar discrimination on the basis of religion but not political beliefs. So harassing an employee because he’s Muslim could be discrimination, while harassing him for being a Republican wouldn’t be (although it could still result in your being liable under one or more of the other workplace violence laws).

5. Contract law

Some courts believe that employers have an implied contractual duty to treat employees with respect and dignity so they can do their job. A victim of workplace violence might be able to claim that an employer failed to deliver on this promise and thus breached the employment contract.

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