The federal Occupational Safety and Health Administration (OSHA) has written an enforcement directive for purposes of investigating and dealing with incidents of workplace violence. The directive, issued on September 8, 2011, will be used by OSHA’s district supervisors and area directors in determining whether or not to conduct an investigation into allegations of workplace violence, and includes inspection procedures that will be followed by the agency’s compliance officers while conducting such inspections. It also suggests various methods of abatement available to employers in workplace violence situations.

The directive expands the typical definition of workplace violence to include “threats of assault,” as well as actual assaults, directed toward individuals at work or on duty. It lists four categories of workplace violence based upon the relationship between the perpetrator of the violence and the target of that violence. Briefly, the four categories are: (1) criminal intent (violent acts by people who enter the workplace to commit a robbery or crime or current or former employees who enter the workplace with the intent to commit a crime); (2) customer/client/patient (violence directed at employees by customers, clients, patients, etc.); (3) co-worker (violence against co-workers by a current or former employee); and (4) personal (violence in workplace by a non-employee who has a relationship with an employee).

The directive identifies high-risk industries that are particularly susceptible to workplace violence, and focuses on two of them: health care/social service settings, and late-night retail settings. It also spells out various risk factors that may indicate the potential for workplace violence. These include: (1) working with unstable/volatile persons in certain health care/social service or criminal justice settings; (2) working alone or in small groups; (3) working late at night or during early morning hours; (4) working in high crime areas; (5) guarding valuable property or possessions; (6) community-based health or drug abuse clinics; (7) exchanging money in certain financial institutions; (8) delivery of passengers, goods or services; and (9) mobile workplaces (i.e., taxi drivers).

OSHA advises that inspections "generally shall not be considered" if the allegation of workplace violence is based solely upon threats by co-workers, but further states that OSHA may refer such incidents to the appropriate criminal enforcement agency, the Equal Employment Opportunity Commission, or the National Labor Relations Board for follow up investigation. OSHA inspections may be initiated following a complaint, referral, fatality or catastrophic event (which is defined in the directive as hospitalization of three or more employees) involving an incident of workplace violence. Inspections are more likely in high-risk industries or workplace settings that include the cited "risk factors." Employers also may face citations for potential workplace violence issues during programmed inspections.

The directive lists certain actions or mechanisms available to employers to minimize or eliminate the risk of workplace violence (including alarm systems, panic buttons and hand-held alarms). According to OSHA, administrative controls also could include establishing liaisons with local police and state prosecutors, implementing a mandatory reporting policy, maintaining a log book of all reported assaults or threats, and advising employers of procedures for requesting police assistance or filing charges.

The importance of this new directive is its relationship to OSHA’s General Duty Clause. Under that clause, an employer has a “general duty” to provide a safe workplace, and OSHA has the power to enforce deviations from that duty and impose fines and penalties for violations. The extension of OSHA into incidents and threats of violence is an event to which employers should pay close attention. The extent and manner in which workplace violence is managed by an employer will directly affect its ability to defend against OSHA citations and other potential civil or criminal proceedings related to such incidents.