Is the Safety On or Off? OSHA Takes Aim at Workplace Violence
- Matthew T. Deffebach (Haynes and Boone, LLP) | Erin Shea (Haynes and Boone, LLP) | Steve Cuff (Haynes and Boone, LLP)
- Document ID
- American Society of Safety Engineers
- ASSE Professional Development Conference and Exposition, 3-6 June, Denver, Colorado
- Publication Date
- Document Type
- Conference Paper
- 2012. American Society of Safety Engineers
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- 29 since 2007
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Over the last few years, several states have enacted or are attempting to enact, legislation that allows employees to possess firearms on an employer’s premises, typically in their locked vehicle in the parking lot. Safety professionals and their counsel have often balked at the idea of such laws, given the potential to increase violent situations in the workplace, which could implicate General Duty Clause obligations under Section 5(a) of the OSH Act. Indeed, legal challenges that OSHA preempts such laws have thus far failed. In these challenges, counsel argued the commonsense position that, if an employer has an obligation to provide a workplace free from recognized hazards that may cause death or serious injury, then allowing weapons on the premises runs afoul of that Section 5(a) duty. The frustration over this concept is underscored by OSHA’s recent Directive to issue General Duty Clause violations for outburst of workplace violence.
All of this brings to a head several competing legal duties and obligations and a potential landmine for the safety professional. Thus, our paper begins with the simple premise that OSHA recognizes workplace violence as a potential safety hazard and, thus, we will explore the new OSHA Directive and the concepts that could create liability under the OSHA Act if a safety professional fails to act appropriately on warning signs of propensity to commit a violent act. This necessarily dovetails into two related topics. First, what additional liabilities exist for failing to confront a situation that could subject harm to those in the workplace for the violent or dangerous acts of an employee? The concepts of negligent supervision or negligent retention are state law torts that may be implicated if a safety professional fails to appropriately respond to someone who is acting irrational or under the influence of drugs or alcohol. Second, what if a person’s irrational behavior is due to a medical condition such as they may assert certain rights to accommodation under the Americans with Disabilities Act (ADA)? How should safety professionals act, given the convergence of these issues to ensure liability is minimized?
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