Although most contractors go to great lengths to promote jobsite safety, the fatal injury rate in the construction industry – which employs almost 6.5 million people – still exceeds that of any other U.S. industry. The Occupational Safety and Health Act (OSHA) has an entire section of regulations just for contractors. The OSHA regulations help contractors mitigate jobsite hazards such as falling, electrocution, and chemical exposure. Outside of these known jobsite risks looms the less familiar, but possibly just as dangerous, threat of workplace violence. Workplace violence may include any act of violence, by any individual, against an employee. Employers in all industries may face OSHA citations for failing adequately to prevent it. Yet OSHA does not have a single standard that specifically addresses workplace violence. So what is a contractor to do?
Although OSHA does not regulate workplace violence per se, its “General Duty Clause” requires employers to take “feasible means” to prevent against known threats of violence. The General Duty Clause requires employers to provide “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” The elements of a General Duty Clause violation are: (1) a hazard in the workplace; (2) the employer or the employer’s industry recognizes the hazard; (3) the hazard is likely to cause death or serious physical harm; and (4) there is a feasible means of eliminating or materially reducing the hazard.
In the context of workplace violence which might give rise to an OSHA citation, a key element is that the hazard must be known to the employer or the employer’s industry. Thus, OSHA citations for breaches of the General Duty Clause typically arise in healthcare — for example, in a psychiatric hospital where employees regularly face violent patients. In the construction realm, these citations are much less common. Nonetheless, a contractor could violate the General Duty Clause by ignoring or failing to recognize obvious threats or signs that an individual was going to commit an act of violence against other employees.
While the foregoing focuses on OSHA citations, a contractor could also face civil liability in a lawsuit by an injured employee against an employer. Furthermore, while the availability of workers’ compensation may bar many such lawsuits, contractors should not blindly rely on workers’ compensation insurance as a shield. If the contractor knew about an obvious threat and ignored it, an employee may be able to circumvent the usual bar and recover directly against the contractor.
Despite the lack of specific regulation beyond the General Duty Clause, OSHA has voluntary guidelines to prevent and mitigate workplace violence. The guidelines provide a helpful outline of a preventative program:
- Identify and authorize individuals within the company to implement anti-violence programs.
- Assess what positions or tasks are most likely to lead to violent incidents.
- Create measures to control the risk.
- Train employees to identify potential violence and handle violent incidents.
- Evaluate the effectiveness of the company’s program.
- Make sure that the hiring process thoroughly vets potential employee backgrounds.
Contractors should endeavor to prevent violence by employees and third parties just as any other employer. Most contractors have numerous projects occurring at the same time, and workers may face different threat levels based on the location of those projects. Thus, contractors should tailor preventive measures to reflect the location and nature of the projects. For example, if a project is in a neighborhood with a high crime rate, a contractor should devote more resources to safety training and dedicate on-site management to preventing and mitigating harm.
A critical element, and good starting point, is general awareness of potential harm in the first place. This starts with the hiring process and carries through to evaluating the general safety of workers on particular projects and raising awareness of threats on a daily basis.