The subject of workplace violence has unfortunately made headlines once again after a news anchor and cameraman were killed by a former co-worker in Virginia last week. Employers are understandably concerned and have questions about what they can do to help prevent workplace violence.
The Occupational Safety and Health Act (OSHA) requires employers to maintain a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.” While it might seem that workplace violence would be reduced by refusing to hire or retain individuals with a criminal record or propensity for violence, making employment decisions based on these considerations may pose other legal issues. Federal, state and city laws limit the ability to make employment decisions based on criminal history, and the Americans with Disabilities Act and similar state and local laws prohibit discrimination on the basis of a disability, whether actual or perceived. Making an employment decision based on an employee’s propensity for violence stemming from an actual or perceived mental illness can therefore trigger liability for disability discrimination.
So what can employers do to help prevent workplace violence?
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Institute a workplace violence policy: Employers can develop a policy that clearly states that workplace violence will not be tolerated, and that employees who engage in threatening or violent behavior will be subject to disciplinary action, up to and including termination.
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Develop a comprehensive violence prevention program: Educate employees on resources and procedures if they feel threatened at work, and train supervisors, human resources personnel and security officers to look for “warning signs” such as changes in behavior and/or job performance that may predict a violent incident.
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Remind employees about your Employee Assistance Program (EAP) if you have one: EAPs can provide assistance to troubled employees, including access to counselors and medical professionals.
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Deal with workplace issues before they escalate: Remind managers and supervisors to promptly report all claims of discrimination or harassment to Human Resources and assist in expediting a response to the employee in need of help.
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Review your policy on criminal background checks: Although criminal background checks may reveal information about an individual’s propensity for violent behavior, their use in employment decisions is limited by federal, state and local laws.
Although, as recent events have shown, violent incidents may be difficult to predict, having the policies and resources to address workplace violence is the first step to preventing them.
2015 Proskauer Rose LLP.
