Workplace Violence: Active Shooter Response

By Mark A. Lies II, Seyfarth Shaw LLP


Editor’s note – Mark A. Lies II is an attorney and partner with the Chicago, Illinois, law firm of Seyfarth Shaw LLP. He practices in the areas of employment, occupational, safety, and health, and tort litigation. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.

As the pace and emotional pressures of everyday life impact both employees at home and in the workplace, as well as unknown individuals (including terrorists), a distressing and tragic trend is occurring — employees and unknown individuals are unable to control their emotions at work or have ulterior criminal motives and violence erupts toward co-workers, customers, or third parties. The unfortunate statistics show that homicide is the number one cause of death for women in the workplace and the third overall cause for men and women combined. This trend is expected to increase in times of economic uncertainty and social and political unrest. In many cases, these acts of violence occur as employees face the prospect of layoffs and corporate reorganizations in many industries.

No employer wants such incidents to occur. Ironically, however, as employers struggle to avoid these potential legal liabilities through creation and enforcement of employment policies, they are met with a host of federal and state laws that may protect certain employee conduct. More importantly, since an employer has no objective “litmus test” for predicting which employee may become violent under particular triggering circumstances, there is no fool-proof way to effectively eliminate the hazard. Likewise, an employer cannot predict whether unknown individuals may decide to commit random acts of violence because of mental and emotional conditions or for misguided political or religious motivations.

OSHA
Under the Occupational Safety and Health Administration’s (OSHA’s) General Duty Clause, an employer is required to protect its employees against “recognized hazards likely to cause serious injuries or death.” As such, an employer should consider developing a workplace violence prevention and response policy that should, at minimum, include these elements:

• a stated management commitment to protecting employees against the hazards of workplace violence, including both physical acts and verbal threats;

• a statement that the employer has a “zero tolerance” policy toward threats or acts of violence and will take appropriate disciplinary action against employees who engage in such conduct;

• identified means and methods for employees to notify the employer of perceived threats of violent acts in a confidential manner;

• a means to promptly investigate all such threats or violent acts;

• consistent, firm discipline for violations of the policy;

• training for managers and employees to identify signs and symptoms of employee behavior that may predict potential violence (i.e., erratic behavior; employee comments regarding homicide or suicide; provocative communications; disobedience of policies and procedures; presence of alcohol, drugs, or weapons at the worksite; physical evidence of employee abusing alcohol or drugs) and should be reported to the employer;

• a non-retaliation policy for employees who report verbal and physical conduct to the employer who they reasonably believe represents a threat of potential workplace violence;

• a team of qualified individuals (e.g., human resources, risk managers, legal, medical, security) either within the company or readily available third parties who can respond to a potential or actual incident; and

• an employee assistance plan to help workers who may be experiencing mental or emotional stress.

Active Shooter Emergency Response Policy
Unfortunately, despite the fact that many employers have developed workplace violence prevention and response policies, there will be instances where an active shooter, be it an employee or an unknown individual, will come to the premises and attempt to kill employees and other people who may be at the workplace. In anticipation of such an event, the employer should consider developing an active shooter emergency response policy to inform employees of the three courses of action to take – evacuate, hide out, or self-defense – and how to react when law enforcement arrives.

The sample policy here sets out recommendations gathered from the Department of Homeland Security, the Federal Bureau of Investigation, other law enforcement agencies, and recognized industry sources. Consider developing such a policy utilizing the one provided and customize it to your worksite. This article and policy template is provided to be of assistance in preventing or minimizing another high-profile workplace tragedy.

Comments on the policy are welcome. Employers seeking assistance developing a policy or conducting training can e-mail"Mark Lies II":mailto:mlies@seyfarth.com.


October 2016 RENDER | back