The vast majority of citations issued by the Occupational Safety and Health Administration involve accidents or negligent behavior that result in injury or illness resulting from inanimate objects, hazardous materials, or acts of God. In some circumstances however, OSHA cites employers after a criminal act by a third party. Earlier this week, the agency cited a Florida convenience store chain for the maximum $16,131 amount following a shooting during a robbery, which seriously injured the clerk.

While OSHA regulations do not address workplace violence, over the years the agency has issued a number of guidelines and best practices for employers with high risks of exposure to workplace violence such as convenience store and health care workers. In this case, OSHA used these guidelines, among others, to cite the employer under the General Duty Clause, a catch-all provision that allows OSHA to issue penalties in the event of exposure to serious injury or death in the absence of a specific workplace safety standard.

OSHA said that the employer failed to implement a comprehensive workplace violence prevention program, including elements such as training, and assessment of engineering and other controls to reduce the likelihood of employee injury in the event of a robbery. If this approach is considered an industry consensus, many affected employers lack the type of comprehensive workplace violence prevention programs noted by OSHA. Given recent Supreme Court decisions limiting the regulatory authority of federal agencies, employers may be more inclined to challenge citations based on non-regulatory safety guidance.

For more information, please contact me or your regular Parker Poe contact. You can also subscribe to our latest alerts and here.