The Connecticut Business and Industry Association (CBIA) hosted a Sept. 15 webinar on being prepared to deal with workplace violence.
Nick Zaino, a partner at the law firm Carmody Torrance Sandak & Hennessy, explained best practices for protecting businesses from liability stemming from instances of violence through implementing safety best practices and understanding the obligations employers have in worst case scenarios.
Zaino, a labor law expert with clients across multiple industries, started the discussion with a focus on the labor law implications of major workplace incidents. He pointed to gun violence as a particularly concerning cause, noting that by July 5 the U.S. had seen more than 300 mass shootings during 2022.
“Every year, approximately 2 million employees are victims of workplace violence,”he said. “Those are quite alarming numbers for employers given the rise in workplace violence and just violence in general.”
According to Zaino, the U.S. Occupational Safety and Health Administration (OSHA) requires all employers to provide “a workplace free from hazard.”While there are some obvious aspects of that duty such as ensuring safety regulations are followed and that there are no obvious causes to accidents, in the case of violence OSHA evaluates the situation on whether an employer followed the “General Duty Clause.”
“The General Duty Clause does not create a binding cause of action so an employee could not bring a claim directly under the clause,”he said. “It can only be enforced by OSHA, and to prove a violation of the clause OSHA needs to show that the employer failed to render its workplace free of all hazards. Also, that the particular hazard was recognized, the hazard caused or was likely to cause death or serious physical harm, and that there was a feasible and useful method to correct the particular hazard.”
Zaino broke down some cases of workplace violence where OSHA sided with employees on a claim, and other cases where employers came out on top. The differences between those instances were often minor, so he emphasized that following the regulations closely is often the best course of action.
Where this gets particularly tricky, Zaino observed, is with employees who display “red flags”that they could be a source of violence. These need to be handled on a case-by-case basis he cautioned. An audience member asked about a situation they faced, where an employee was charged by police for criminal possession of a pistol.
“I typically do not advise an employer to take an action based on a charge in and of itself,”Zaino replied, “Unless that charge is quite serious. But I think given that the nature of that criminal possession of a pistol that could just very well be somebody who has not registered that particular pistol, I don’t know that that necessarily warrants an employment action.”
However, that same employee warranted increased attention, according to Zaino. Vigilance is the key, but there are legal ramifications to overaction.
Safety expert Mike Miele followed Zaino with a presentation on how to secure a workplace physically against acts of violence, whether a sudden outburst from an employee or customer or a deadlier issue such as a mass shooter. Miele has more than 20 years of experience as a health and safety manager for a number of companies, including Stratford’s Sikorsky Aircraft and is currently the EHS Business Regional Manager at Danfoss Power Solutions in Prospect, Connecticut.
Miele discussed key steps to protect a facility and placed much of the emphasis on developing site specific plans. Running drills, performing inspections and coordinating with local law enforcement were the best way to improve safety in his view.
Miele urged attendees to explore opportunities to have the police fire blank rounds in the building so employees learn what gunshots in their space sound like.
He also recommended designating floor marshals to direct groups and respond to changing situations, and making arrangements with neighboring businesses to let employees shelter there in case of an evacuation. The specific ways to prepare can differ widely from location to location, but planning will always improve the situation.
Those improvements may seem small, but Miele warned they can be significant.
“The average time of an incident is roughly five minutes when we’re talking about an active shooter and an average time for police response is 15 minutes,”Miele said, noting that every second matters in a narrow timeframe.
