That hypothetical scenario would be terrible enough. But now imagine that, in the midst of the hospital trying to recover from this tragedy, a federal Occupational Safety and Health Administration investigator arrives to conduct an inspection.
After months of interviewing employees, reviewing documents, and taking videotaped tours of the hospital, OSHA issues the hospital a citation and fine (!) on the basis that the violence was foreseeable and the hospital did not do enough to prevent it.
As you may have guessed, the above inspection is not so hypothetical. On Sept. 8, OSHA issued a directive to its investigators regarding how to inspect -- and cite -- employers for instances of workplace violence.
If you're wondering where to look up the federal law or regulation that tells employers how to avoid a citation for workplace violence, don't bother. OSHA has issued this directive under the assumption that a vague clause of the Occupational Safety and Health Act gives OSHA the power to cite employers for something as specific and unpredictable as workplace violence.
Known as the "General Duty Clause," this provision requires employers to keep their workplaces "free from recognized hazards that are causing or are likely to cause death or serious physical harm" to employees.
Congress intended for this clause to be used only as a temporary measure, until OSHA could draft rules regarding specific hazards that had the agency had not yet addressed. It was not intended to be used as a means for OSHA to issue citations for anything under the sun.
Yet in the past several years, OSHA has used the General Duty Clause to cite companies for issues as varied as crowd control, heat stress, and even the use of killer whales in SeaWorld shows.
Now, OSHA seeks to take the General Duty Clause one step further, and to use it to hold employers liable for actions taken by people who are not their employees. This is troublesome for two reasons.
First, it is incredible to hold companies liable for the actions of the general public. By that standard, every time an unruly bar patron takes a swing at a bouncer, or every time a criminal holds up a convenience store, it's the employer's fault for placing employees in that situation.
Indeed, employees in the security industry by definition place themselves at risk of assault by the general public. What is to become of them?
Second, the directive provides employers no clue about what to do to avoid a citation. Will a grocery store or bank be liable if employees are shot during a robbery? OSHA's answer to this question is an emphatic "maybe," and depends in part on what measures a security expert may recommend to the employer. But employers should not have to hire an expert to find out what the law requires.
The General Duty Clause was intended to be caulk -- to fill in the gaps where regulations did not apply to ensure that employers kept the workplace free of "recognized hazards." OSHA, however, has shaped and cured the caulk into a cudgel, using it to cite employers for a multitude of conditions, including those beyond the employers' control.
Congress should ensure that OSHA limits its use of the General Duty Clause to the original design of the Occupational Safety and Health Act and does not punish employers for acts beyond their control.
Michael Billok is a labor and employment lawyer at Bond, Schoeneck & King PLLC in Albany, N.Y.
When the goal is to replicate the old Soviet Union what else would you expect.
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