Subduing Violence at Work: Setting Policies to Help Safeguard the Workplace

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Like many incidents that cause sorrow and suffering in a workplace, nothing seemed out of the ordinary at Brigham and Women’s Hospital in Boston on a fateful day in January.

According to an account in The Boston Globe, a 55-year-old man, Stephen Pasceri, drove to the hospital that morning to confront a cardiologist who had operated on the man’s mother a few months earlier; she died a month later. The man was insistent on seeing the cardiologist, but did not appear visibly enraged or upset, according to reports. However, police said the man later shot the cardiologist dead in an exam room before killing himself.

Savvy employers are losing sleep as workplace violence becomes a more pressing concern. Employers see the growing trends:

• Domestic violence has been spilling over into the workplace.
• Intolerance in our public discourse, whether its source be political, religious, racial or personal, has led to instances of violence.
• Debates rage in various state legislatures between employers, espousing their property rights and the obligation to ensure workplace safety, and the gun lobby, which espouses the right to bear arms in light of a person’s carry permit and the view that the workplace is more safe (not less) if persons are allowed to carry.
• In health care, nurses and other health care workers, already on edge about infectious disease exposure, share horror stories of mistreatment from impaired patients, and often the impairment needing treatment is the very cause of the violent abuse, both verbal and physical. About 10 percent of workplace violence occurs in medical settings, according to a U.S. Bureau of Justice Statistics report.

In the midst of these concerns, employers have a duty to provide a safe workplace. While the concerns are not new, they appear to be on the rise. Within the past year, shootings at three different hospitals and an accidental shooting resulting in the death of a Wal-Mart shopper highlight the heightened visibility. Domestic violence and racial or religious tensions have spilled over into the workplace, which arguably increase an employer’s duty to foresee these concerns and be prepared. Note the U.S. Equal Employment Opportunity Commission’s recent guidance on domestic violence.

Health care workers in particular seem especially vulnerable, but the concerns arise also in traditional plant settings, said Jill Bond, vice president and general counsel at Rich Products Corp., a Buffalo, New York-based frozen-food company.

“We must plan for many potential situations,” Bond said. “We must be proactive in dealing with employees who appear to have challenges in getting along with others, especially in certain domestic situations, and we might refer someone to our employee assistance program, for example.

“I believe it is difficult for employers to find the right balance between ‘off-duty’ conduct and what implicates ‘on-duty’ responsibilities for an employer, especially in light of new EEOC guidelines,” she added. “This is especially true when co-workers are also companions or relatives outside the workplace. On the one hand, we have to be careful about being too intrusive. On the other hand, we don’t want to look back after a violent incident and wonder whether we could have done more.”

What’s an Employer to Do?

The duty to provide a safe workplace arises from a U.S. employer’s obligations under the Occupational Safety and Health Act as well as its common-law duty to act reasonably in eliminating or reducing risk of injury to its employees or patrons. The shield of workers’ compensation laws reduces some of an employer’s liability risk arising from the common law duty, but that shield is under increasing attack. And, more importantly, no employer wants a tragic shooting or serious injury on its premises, even if the financial repercussions may be limited.

So, what are reasonable, proactive steps an employer should consider?

Employers should consider banning weapons on premises. This policy will highlight the gun-debate tension mentioned above. While some jurisdictions may not allow an outright ban, even in those areas, the employer should write a policy to ensure that only persons who have taken training and obtained permits are allowed to carry weapons. In those jurisdictions that allow persons to carry guns with permits, the employer should consider requiring workers to notify the employer. If the employer is in a high-risk area or industry, the employer should have a security force and, more importantly, one with appropriate training.

Beyond banning weapons or requiring workers to notify the company if they bring a gun to work, employers should consider surveillance cameras, especially at entrance areas, and should publicize their presence. Publicized surveillance can have a significant deterrent effect, and publicizing their presence also remedies any privacy concerns of employees and patrons.

Additionally, an employer’s policy relating to workplace violence and/or threats should include a “zero tolerance” statement for such instances, particularly in today’s climate of rising concerns. Of course, “zero tolerance” still requires some level of judgment and does not mandate a termination for any and all offenses, but the policy should be direct, clear and forceful. And an employer’s actions in responding to an alleged threat should be consistent with its expressed concern.

Compared with other companies, health care employers often have heightened issues because of the impaired nature of some of their “customers” — the patients.

“We strive to treat our patients in the most caring and compassionate manner to ensure effective dialysis treatments in a safe and comfortable environment,” said Jessica Emler, public information coordinator at Nashville, Tennessee-based Dialysis Clinic Inc. “However, we understand that no health care setting is truly immune to disruptive behavior. Inappropriate behavior, most often in the form of abusive, harassing or profane language, can occur at any time. Therefore, we have open and honest conversations at local and corporate meetings about addressing inappropriate behavior early and effectively in an attempt to provide a pleasant and comfortable dialysis facility.”

Bad behavior is more of an outlier at the clinic than the norm, Emler said. But should the need arise, she said the clinic’s human resources, risk management and legal teams are all available to support staff on finding ways to improve and continue the relationship with a disruptive patient.

“Of the more than 14,000 patients we serve, we have witnessed very few bad patients. More often, it is poor decision-making by the patient who is upset about his/her circumstances or long-term prognosis,” Emler said. “In the dialysis facility, inappropriate/disruptive language accounts for 90 percent of the patient-related behavior issues that we address. When a patient says something inappropriate, we first request that staff hold an interdisciplinary team meeting with the patient to see if we can identify the root cause to the patient’s outburst and show our resolve that we do not tolerate unacceptable behavior in our clinic.”

The employer’s policy relating to workplace violence and/or threats of such violence should contemplate domestic violence issues. In the past few years, the EEOC has indicated that it intends to focus on domestic violence issues. On Oct. 12, 2012, the EEOC published a guidance fact sheet advising employers to be careful not to “overlook” domestic violence as a potential basis for employment and disability discrimination, workplace harassment or retaliation. As Michael Baldonado, district director for the EEOC’s San Francisco office has stated, Employers should take time to “learn how to respond to domestic violence when it impacts their workplace.” Employers should consider the following:

• When an employee is a victim of domestic violence and complains of workplace discrimination or harassment, “[t]rain supervisors to respond quickly and reasonably, and especially warn them not to take adverse actions against those who speak out against abuse.”
• And if an employee is charged with domestic violence, avoid hasty terminations without first conducting an independent investigation, but take necessary steps to ensure the safety of employees and customers. One way to do that is by placing an employee charged with abuse on paid or unpaid leave while conducting an investigation. The employer should inquire into whether the conduct underlying the charge makes the employee unfit for the position in question. If so, be prepared to support the termination with neutral policies and an accurate, up-to-date job description.
• Finally, an employer should be proactive in partnering with local authorities in prevention training, especially with the employer’s own security force, and should consider discussing with local authorities about increased monitoring when a threat or potential threat presents itself. Most local police authorities have begun developing contingency plans for responding to workplace violence; an employer’s request to be a part of that discussion, or perhaps even triggering such planning, would be a valuable step in preparedness.

No amount of preparation can ensure that a workplace remains free of violence. But HR professionals who enact a deliberate plan in pursuit of a company’s duty to provide a safe workplace can minimize the risks and, when an incident occurs, be well placed to mitigate the damage. And, just maybe, they can rest a little easier at night.

Tim K. Garrett is a member in the Labor & Employment practice at the law firm Bass, Berry & Sims in Nashville, Tennessee. Comment below or email editors@workforce.com. Follow Workforce on Twitter at @workforcenews.