New Workplace Violence Guidelines – Jeffrey S. Harris

Hawaii Occupational Safety and Health Division Administration recently warned employers when hazards created by violent coworkers, customers or others will violate Haw. Rev. Stat. § 396-6, the general duty clause in Hawaii Occupational Safety and Health Law. CPL 02-01.058, Enforcement Procedures and Schedule for Occupational Exposure to Workplace Violence, adopted March 1, 2017, available at http://labor.hawaii.gov/hiosh/guidelines/directives/.

According to the procedures, HIOSH will consider whether a workplace involves one of ten listed risk factors when deciding whether to inspect a violence complaint or incident: (1) contact with the public; (2) exchange of money; (3) delivery of passengers, goods, or services; (4) mobile workplace, such as a taxicab; (5) employment in healthcare, social service, or criminal justice; (6) working alone or in small numbers; (7) working late at night or during early morning hours; (8) working in high-crime areas; (9) guarding valuable property or possessions; or (10) working in community-based settings, e.g. rehabilitation centers, group homes.

When a workplace involves at least one of the factors, HIOSH will claim an incident violates the general duty if: (a) the employer failed to keep its workplace free of a foreseeable workplace violence hazard; (b) the hazard was recognized explicitly or it occurred in a recognized high-risk industry; (c) the hazard was causing or likely to cause death or serious physical harm; and (d) there was feasible, useful means of correcting the hazard. 

HIOSH advises employers to assess their worksites, identify methods for reducing incidences of workplace violence, and develop and implement a well-written workplace violence prevention program. The agency suggests employers implement engineering and administrative controls, and train employees regarding reducing incidences of workplace violence.

An appendix lists potential methods for reducing workplace violence, including a policy statement, hazard assessment and security analysis. It describes engineering controls, including assessing plans for new construction to eliminate or reduce risks; installing and maintaining alarm systems and other security devices, including metal detectors and 24-hour close-circuit recording equipment; limiting access to the worksite; and installing bright, effective lighting. It adds administrative controls, such as conducting a workplace hazard analysis; training employees on workplace violence; coordination with local police and state prosecutors; and requiring employees to report all assaults or threats to a supervisor or manager.

Companies failing to heed these warnings may increase their managers’ exposure to claim for injuries caused by workplace violence, under the willful and wanton exception to co-employee immunity of Hawaii workers compensation law. Iddings v. Mee-Lee, 82 Haw. 1, 919 P.2d 263 (1996).