National Clothesline

Politics is the art of looking for trouble, finding it whether it exists or not, diagnosing it incorrectly, and applying the wrong remedy.” – Ernest Benn.

OSHA, looking for trouble, has issued a 50-page directive for its inspectors called Enforcement Procedures of Investigating or Inspecting Workplace Violence Incidents. OSHA, in addition to making sure electrical cords are not frayed and boxes are not stacked too high, will also inspect to determine if an employer could have prevented two employees from beating each other up or the business from being robbed.

All kidding aside, there are businesses where workplace violence is a constant danger (prisons or psychiatric hospitals, for example), and workplace violence is the third leading cause of workplace fatalities. And in fairness to OSHA, it does identify several workplace types that should take extra precautions to prevent workplace violence, such as these types below:

Psychiatric facilities.

Convenience stores open late at night.

Hospital emergency departments.

Liquor stores open in the late night.

Community mental health facilities.

Drug abuse treatment clinics.

Pharmacies.

Residential and long-term health care facilities.

Any store opened in the late night with a single worker.

How about drycleaning stores in high crime areas?

It is clear that OSHA intends to target for inspection under this new directive businesses subject to robberies. Any business where employees handle cash will be targeted, and if you have a delivery service, delivery truck driving is considered a high-risk activity in terms of violence.

Although there are no specific standards dealing with workplace violence, the directive says that employers will be cited under the catch-all general duty clause, which requires employers to provide a workplace “free of all recognized hazards likely to cause serious injury or death.”

The directive implies that employers must make hazard assessments and have a workplace violence prevention program in place. Perhaps OSHA will eventually require all liquor stores to have cages for employees handling cash. The directive identifies engineering controls and personal protective gear as two things that might be required. Engineering controls are things like lock boxes, panic buttons, or doors that open only if a person is “buzzed in.” I guess a bullet-proof vest would be personal protective equipment.

I suspect that OSHA will start citing employers for failure to have a workplace violence prevention program or failure to have procedures for employees to employ during robberies. When I worked at McDonald’s in the 1960s, we were told to ask robbers if they wanted fries with the cash we were handing over. Good advice.

This directive presents some interesting questions for employers with evidence of employees with violent tendencies or bad tempers.

Employees who engage in workplace violence can normally be terminated without running afoul of equal employment laws, unless of course violence committed by non-minorities is treated differently than violence committed by minorities. Early in my legal career, I had a dicey case where a black employee was fired for hitting her supervisor, but a white employee two years earlier had not been fired for assaulting his supervisor with a knife.

Where violence is threatened, it may be even more problematic. If an employee threatens to kill himself, do we have notice of a potential claim for mental disability accommodation?

If an employee says “do that again and I’ll break your leg,” must the employer take action under a violence prevention program?

If a returning veteran makes threatening gestures, should we suggest he take FMLA leave or should we give other employees defensive weapons? It is all very murky.

As a cash business, I suggest that the typical drycleaner do a hazard assessment and have a workplace violence prevention program, if only to tell employees what to do during a robbery. If you have a handbook, you need to make sure that workplace violence is identified as a firing offense. Cases where violence is threatened should be dealt with decisively.

Now, if we could only get the government to work on making running a business easier, we might see the economic growth everyone is looking for, instead of 50-page directives. Don’t hold your breath.