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Even As They Lament The Horrific Reality Of Mass Violence, Employers Must Consider How To Prevent It In Their Workplaces

After last week’s horrific mass shooting in Orlando, which targeted the LGBT community, most of us have spent days lost in thought, in sadness, and in concern about how such tragedies continue to occur. As people return their immediate focus to work after one of the largest and most violent shooting incidents in American history, we can do our best to suspend momentarily our thoughts about social tensions, politics and political rhetoric, and other such things as we try to focus on our job responsibilities. But events such as what occurred in Orlando on June 12 create painful but unavoidable reminders that employers must deal with the realities of gun violence, and demand that managers and business owners ask what they can and should be doing to prevent such an event from occurring in their workplace.

If there can be any good news when discussing this horrible topic, the fact remains that the chances of a violent shooting in the workplace remain extremely remote. In 2014, fatal injuries due to workplace violence resulted in 749 deaths and the number of all workplace homicides was 403. While these numbers may provide little comfort, it does remain the case that the likelihood of a workplace shooting incident is low. But these statistics should not be misread as a reason for employers not to take these issues seriously.

As to an employer’s legal obligations in this area, though there are no specific federal regulations concerning an employer’s obligation to prevent workplace violence, there is no question that Section 5(a) of the Occupational Safety and Health Act (OSHA), more commonly known as the General Duty Clause, requires every employer to provide their employees with a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees.” In addition to OSHA, other sources of potential legal liability for workplace violence include Worker’s Compensation to injured employees, tort liability relating to failure to provide adequate security, as well as tort liability to third-party victims resulting from the negligent acts of people under an employer’s control. Such claims are commonly known as negligent hiring, negligent supervision, and negligent retention.

In light of plain humanitarian concern as well as the legal obligations employers face, every employer should review the risks inherent in their workplace. Employers should evaluate their current physical security and determine what needs to be done. For example, the level of risk facing any individual workplace will be greatly influenced by the physical location of that workplace and the nature of the business activity. By way of unfortunate example, businesses located in high crime areas or ones that are open late at night like convenience stores, gas stations or late-night social venues present a naturally higher risk.

An employer program to prevent workplace violence should contain at least these elements:

  1. Create an internal Threat Assessment Team to study the inherent risks of your particular workplace and map out an implementation plan and if necessary, convert to a Rapid Response team to take control if a violent incident occurs.

  2. Conduct a work site audit of the physical layout and current security measures in place. Oftentimes, this will require an employer to engage appropriate outside experts.

  3. Train employees and develop their awareness. When considering what type of training should be conducted for employees, employers will need to balance the obligation to take reasonable steps to educate employees on their role in preventing workplace violence while at the same time not creating undue fear such that employees become afraid to come to work. As noted above, the chance of a shooting in any one workplace remains extremely remote, yet that should not become the excuse to do nothing.

When it comes to the issue of active shooters in the workplace, there are a number of available and useful resources employers should consider. The Department of Homeland Security has created practical training materials for how to respond to any active shooter. These materials advocate training all employees to take a three-step approach if ever faced with an active shooter:

  1. RUN: if there’s an easily accessible escape path

  2. HIDE: if evacuation is not possible

  3. FIGHT: only as a last resort and only when life is in imminent danger people should fight against the active shooter

These materials advocate that people think in advance of multiple routes of exit, appropriate secure hiding places and using improvised weapons such as furniture and fire extinguishers. One thing employers should avoid is having one designated safe room and widely publicizing its location to everyone. It is a terrible thing to have to contemplate, but employers must remember than an active shooter may well be one of their employees who went through the training.

© 2020 Foley & Lardner LLP


About this Author

Mark J. Neuberger, Of Counsel, Miami Lawyer, Foley Lardner, Non profit Attorney
Of Counsel

Mark J. Neuberger is of counsel and a litigation lawyer with Foley & Lardner LLP. His practice involves the representation of management in all areas of employment law, including general labor and employment guidance to clients. He regularly represents clients in the health care, hospitality, manufacturing and not-for-profit industries. He is a member of the firm’s Labor & Employment and Private Equity & Venture Capital Practices as well as the Health Care Industry Team. Mr. Neuberger also serves on Foley’s national Pro Bono Legal Services Committee.