Steps for Averting Pandemic-Induced Workplace Violence

Law360

Lauri F. Rasnick and Elizabeth K. McManus, attorneys in the Employment, Labor, and Workforce Management practice, in the firm’s New York office, co-authored an article in Law360, titled “Steps for Averting Pandemic-Induced Workplace Violence.” (Read the full version – subscription required.)

Following is an excerpt:

As states and municipalities reopen — and perhaps close and reopen again — more and more businesses are reviving in-person operations, leaving employers to confront myriad state and local requirements, industry-specific guidelines, and commonsense health practices to operate a business in a post-COVID-19 world.

While an employer’s list of worries about employee health and safety is already far too long, a thorough return-to-work strategy addresses at least one aspect of health and safety other than the illness itself: the increased potential for incidents of workplace violence due to the stresses and tensions caused by the virus.

As part of a return-to-work plan, conscientious employers should consider implementing policies and mechanisms to both prevent and diffuse these inevitable tensions along with the more common measures to ensure employee safety, such as screenings, social distancing and additional hygiene practices. 

Most employers already know that they have a duty to keep their employees safe, and have likely become familiar with the Occupational Safety and Health Act because of the challenges presented by COVID-19. The OSH Act’s general duty clause states that each employer “shall furnish to each of his employees 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 to his employees.”

Employers can be deemed in violation of that general duty clause if they fail to keep the workplace free of a hazard to which employees were exposed and where:

  • The hazard was recognized.
  • The hazard caused or is likely to cause death or serious physical harm.
  • There was a feasible and useful method of correcting the hazard.

The Occupational Safety and Health Administration recognizes workplace violence as a potential hazard, defining it broadly as

any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. Such workplace violence ranges from threats and verbal abuse to physical assaults and even homicide. It can affect and involve employees, clients, customers and visitors.

In the midst of COVID-19 and business reopenings, there is no shortage of news stories recounting workplace violence against retail employees by customers, often over mask-wearing guidelines. There are reports of customers throwing objects or spitting on employees and, in a few worst cases, shooting and killing employees who were simply trying to enforce mask-wearing rules.

In response to increased threats and agitated customers, some large retailers that require customers to wear masks have now told employees that they are not required to prevent customers that refuse to wear masks from entering stores. A goal of this directive is undoubtedly to preserve employee safety and address employee fears about confronting potentially irate customers. Aware of the excess stress on employees and potential threat to their safety, some retail employers have created specific positions for employees trained in conflict de-escalation skills to interact with mask-reluctant customers.