31 May 2016

Workplace Violence: Policies to Protect Your Organization

Mass shootings in places like Kalamazoo (2016) and Grand Rapids (2011) resonate in our communities and across the nation. Sadly, we can no longer take for granted that our workplaces are safe from active shooters and other violence. In addition to implementing a workplace violence prevention program, employers should take proactive steps to adopt policies that protect both employees from potential violence and the organization from potential liability.

Zero-Tolerance Workplace Violence Policies
Ask any human resources veteran to open their employee handbook, and a quick peek at the index will probably reveal a policy prohibiting employees from engaging in any violent behavior towards others at work. But it is time to review and revise those policies to make sure that they are effective. Consider the following:

  • A Clear Reporting Procedure. Some incidents of workplace violence are preceded by an ominous phone call, an explicit email, or some other signal that an attacker is on his or her way to the workplace with intent to harm someone. Clearly inform employees who to notify when they become aware of a threat and what to do after they provide this notification.
  • Domestic Violence Coverage. When women are killed at work, the perpetrator is most frequently a current or former romantic partner. Make employees aware that domestic violence can become a work-related concern if a violent spouse or partner follows an employee to work. Further, direct employees to notify a supervisor if they witness a co-worker being stalked or harassed by a spouse while at work.
  • A Defined Response Procedure. It is too late for an employer to select a response team if they wait until an attack is underway. Define how managers should behave if they receive a credible report of potential violence.

Weapons in the Workplace Policies
The common thinking has been that employees should not be allowed to bring weapons to work. Now there is debate about whether employees should be able to arm and protect themselves at work. Whichever approach your organization chooses, it’s important to consider the following:

  • A Clear Written Policy. Any employer allowing employees to carry weapons at work should define who may carry, when they may carry, and under what circumstances weapons may be used. For example, allow only employees to carry concealed, registered firearms at work.
  • CCW-Free Zones. Under Michigan law, individuals are absolutely prohibited from carrying a concealed firearm in certain places, no matter what an employer’s policy may allow. These locations include child care/day care centers, sports arenas, bars, hospitals, or certain large entertainment facilities.
  • Third-Party Liability. Accidents can occur even for the most highly-trained and responsible firearm operators. Balance the potential safety of having armed staff with the potential risk of injury to other employees, customers, or clients. If an employer has enacted a weapons policy, they may be liable for injuries that may result from the actions of its employees under certain circumstances.
  • Workers Compensation Insurance Coverage. Because weapons in the workplace have the potential to cause injuries in the workplace, consult with your workers compensation insurance carrier before allowing employees to carry weapons to work.
  • State Laws. Michigan law allows employers to affirmatively prohibit employees from bringing weapons on their premises. But other states are not always so permissive. Make sure your organization knows the rules in all states in which you have operations.

Criminal Background Check Policies
Conducting reasonable and lawful pre-employment background checks is a quick and easy way to know whether an applicant has a history of violence. Employers should make an individualized assessment of criminal history, considering the nature and gravity of the offense, the time that has passed since the offense and the nature of the position that they are applying for.

ADA and EAP Policies
An employee may notice unusual behavior in a co-worker and express concern to Human Resources for the co-worker’s own health or for the safety of the workplace. The Human Resource representative may be tempted to ask the co-worker a question about whether the co-worker has a health concern that is causing the behavior. Generally, mental health issues including anxiety and depression are considered disabilities under the ADA, and the ADA limits an employer’s ability to ask disability-related questions.

However, employers can ask questions or require a medical exam in some situations if it is job-related and consistent with business necessity. This includes a reasonable belief, based on objective evidence, that an employee will pose a direct threat to themselves or others due to a medical condition. In situations where an employer has a reasonable belief, based on objective evidence, that an employee may commit an act of violence, it may be job-related and consistent with business necessity for an employer to make disability-related inquiries or require a medical examination.

Many employers provide “employee assistance programs” or EAPs. Many referrals to EAPs are voluntary for the employee after the employee has discussed some sort of personal struggle. In some circumstances, including a threat of violence, employers may consider requiring an employee to attend an EAP. Be cautious, however, because a mandatory referral could be portrayed as the employer perceiving the employee as having a mental health disability. If mandating EAP attendance, the key for the employer is to focus on the troubling behavior, and not base the referral on a hunch as to what is causing the behavior.

Miller Johnson has partnered with local law enforcement to create a task force focused on how employers can prepare for, respond to, and help prevent incidents of workplace violence.  Miller Johnson attorneys will also be speaking on this topic at the Lakeshore Human Resource Management Association (LHRMA) meeting on June 15.

If you have any questions about this article or need assistance reviewing or revising your workplace violence policies, please feel free to contact a member of the Miller Johnson task force (Rebecca Strauss and Sarah Willey) or your Miller Johnson employment attorney.