On the front lines with Fisher Phillips: Does your emergency response plan address workplace violence or active shooters in the workplace? (Part 1)

by Collin Warren and Travis Vance

Workplace violence and active shooters in the workplace — while not the topics most want to discuss – are simply not going away. Without engaging in the political debate that often swirls around the imbedded issues of mental health, background checks, and the impulsive and violent world we seem to live in, we are frequently asked to deliver thoughts on this issue — both from a legal, proactive, and incident response standpoint. This two part series will (briefly) address some of the most common questions we receive from employers, as well as imparting knowledge that is typically driven by our law enforcement counterparts during these discussions as preventive and responsive measures. In the end, we hope that all employers — whether in the mining community or elsewhere — will consider addressing workplace violence and active shooters in their emergency response or action plans.

Most employers in the mining industry have written protocols that address what employees should do in the event of an emergency. Most of these programs have detailed protocols, and in some cases are even practiced, wherein employees go through drills on responding to natural disasters, fires, explosions, floods, landslides, cave-in’s, entrapments or other emergencies that might occur at the workplace or during working hours. Most all of these plans or procedures are far more intricate (and well thought out) than “call 911” and “wait for help to arrive.” In light of the events we see or read about nearly every day, should employers decide that there is little greater “emergency” to prepare for than an active shooter or some other form of workplace violence? The answer is likely “yes.” In that case, what is the call to action and what might employers consider relative to creating or modifying an emergency action/response plan?

• Contemplate where the risks might come from (just another hazard assessment)

Most employers are familiar with job hazard assessments, job safety analysis, and/or other workplace safety exams. Just as most of our readers require some form of personal protective equipment on the job, which was supported or based on some form of prior workplace exam or hazard assessment, employers should analyze their workplace for threats of workplace violence. In the mining community, unlike other industries (e.g., healthcare, retail, etc.) where the threat may be from an external customer, consideration may be given to scenarios where employees bring family or domestic disputes to the workplace or instances of volatile behavior post-discipline. In cases such as this, employers should consider where these threats may come from and how to provide potentially impacted employees with protection from such threats. This may range from how terminations are handled to having a mechanism (discussed below) where employees can alert management of issues off the job that may translate or carryover into instances of workplace violence on-the-job (i.e., a nasty divorce or contentious custody battle).

• See something, say something policies

We teach children “stranger danger” and encourage every person who has walked through an airport in the last 15 years that if they “see something, say something.” Whether known by this moto in your workplace or not, employees should be trained to say something if they are aware of behavior that could become violent or lead to violence. This often can be from social media posts, emails, text messages, or other potential threats that occur away from the workplace, but implicate or suggest potential violence in the workplace. Employers who implement policies where employees can freely and openly disclose potential threats are able to better investigate and take preventative measures before instances arise at work. These measures could be anything from assigning different workers to crews or physically separating employees while threats are investigated.

• Restraining orders and protective orders should be provided to employers

Restraining orders and protective orders are becoming more common in domestic disputes. In today’s environment, these may be the leading indicator of potential sources of violence. While not prying into an employee’s private affairs, making it known to employees that a procedure is in place where they can advise the company of the fact of the restraining/protective order, along with a current photograph of the person against whom the order has been entered, can be critical in stopping a threat before it ever enters the workplace. Employers who implement these policies are likely to be in a better position to identify and stop a threat (whether through denial of entry to the workplace or being able to notify law enforcement quickly) before an overt act of violence is committed at the workplace.

• Have zero tolerance policies for workplace violence and enforce them

While many employers already have “zero tolerance” policies, many need to be revisited and updated. Specifically, policies should be updated to account not only for physical threats of violence against employees, but nonverbal threats against employees. Similarly, threats against co-workers should be addressed in policies whether they occur on or off premises, on social media, via text message, etc., due to the sheer potential for carry-over from outside incidents to the workplace. Once these policies are in place, they must be uniformly and consistently enforced.

• Do not rely on employee assistance programs, doctors, law enforcement agencies to change a person’s behavior

The best defense is often a good offense. Having a system in place to help employers not hire the bad employee is critical. However, there are instances where it is unavoidable, impossible to proactively identify, or the threat is from a non-employee. In cases where the threat is identified as a current employee, many employers are quick to rely on employee assistance programs, doctors, or law enforcement agencies to change the person’s behavior. While not minimizing the effectiveness of medications and psychiatric medicine, or the positive behavior change that may result from a night (or week) in jail, employers must remain vigilant in managing and monitoring these situations. If threatening behavior persists, it must be promptly addressed and eliminated from the workforce. While there are overlaps between the ADA and other protected groups, those risks can often be managed via how the policies are enforced.

The above five points, while not all encompassing, address scenarios where the threat of workplace violence is from something or someone other than an active shooter. As there are annually over 400 reported fatalities from workplace violence, these singular events cannot be dismissed and should be addressed in emergency action/response plans. Likewise, with reports of on-the-job sexual assaults exceeding 20,000 per year, non-lethal threats cannot be dismissed or treated with less vigilance. Analyzing and taking measures to train and prevent these types of events are critical. The next installment will address a few points related to active shooter situations.

Collin Warren is a partner in the firm’s Houston and Dallas offices and can be reached at cwarren@fisherphillips.com . or 713•292•9100. Collin has nearly 15 years of experience representing clients in state and federal courts, as well as before the OSHA Review Commission, MSHA Review Commission, Equal Employment Opportunity Commission (EEOC) and other state and federal regulatory agencies.

Travis Vance is Of Counsel in the Fisher Phillips’ Charlotte office and can be reached at tvance@fisherphillips.com . or 704•778•4163. He has tried matters across several industries and various subject matters, including employment litigation, business disputes and matters prosecuted by the MSHA and OSHA.

To read part two, click here.