By Lauri Rasnick and Elizabeth McManus

Law360 (October 15, 2020, 1:43 PM EDT )

Lauri Rasnick

Elizabeth McManus

As states and municipalities reopen — and perhaps close and reopen again — more and more businesses are reviving in-person operations, leaving employers to confront myriad state and local requirements, industry-specific guidelines, and commonsense health practices to operate a business in a post-COVID-19 world.

While an employer's list of worries about employee health and safety is already far too long, a thorough return-to-work strategy addresses at least one aspect of health and safety other than the illness itself: the increased potential for incidents of workplace violence due to the stresses and tensions caused by the virus.

As part of a return-to-work plan, conscientious employers should consider implementing policies and mechanisms to both prevent and diffuse these inevitable tensions along with the more common measures to ensure employee safety, such as screenings, social distancing and additional hygiene practices. 

Most employers already know that they have a duty to keep their employees safe, and have likely become familiar with the Occupational Safety and Health Act because of the challenges presented by COVID-19. The OSH Act's general duty clause states that each employer "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees."[1] 

Employers can be deemed in violation of that general duty clause if they fail to keep the workplace free of a hazard to which employees were exposed and where:

• The hazard was recognized.
• The hazard caused or is likely to cause death or serious physical harm.
• There was a feasible and useful method of correcting the hazard. 

The Occupational Safety and Health Administration recognizes workplace violence as a potential hazard, defining it broadly as

any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. Such workplace violence ranges from threats and verbal abuse to physical assaults and even homicide. It can affect and involve employees, clients, customers and visitors.[2]

In the midst of COVID-19 and business reopenings, there is no shortage of news stories recounting workplace violence against retail employees by customers, often over mask-wearing guidelines. There are reports of customers throwing objects or spitting on employees and, in a few worst cases, shooting and killing employees who were simply trying to enforce mask-wearing rules.

In response to increased threats and agitated customers,[3] some large retailers that require customers to wear masks have now told employees that they are not required to prevent customers that refuse to wear masks from entering stores. A goal of this directive is undoubtedly to preserve employee safety and address employee fears about confronting potentially irate customers. Aware of the excess stress on employees and potential threat to their safety, some retail employers have created specific positions for employees trained in conflict de-escalation skills to interact with mask-reluctant customers. 

In addition to disagreements about mask-wearing and social distancing guidelines, COVID-19 has inflicted stress on employees from a variety of other sources. Families are dealing with record unemployment, increases in domestic violence, and lack of child care or schooling — all in addition to the everyday concerns of simply trying to lead their lives surrounded by uncertainty.

Many employees are plagued with worries: Will I still have a job in a month? Will my kids go back to school or how will I manage remote learning? What happens if I get sick? What is my job doing to protect me?

Now put these overstressed employees together at work and bring on the job demands. Under these circumstances, employers must not neglect another perhaps overlooked workplace hazard: tense COVID-19-related interactions between co-workers and managers, which could serve as fodder for possible workplace violence.

Consider, for example, the employee who is caring for her child who suffers from a chronic respiratory illness and therefore impeccably follows social distancing guidelines. She comes to work on Monday only to overhear a co-worker, who refuses to wear a mask, telling the story of a crowded party he attended over the weekend.

Think also of the employee with a suppressed immune system who works closely with another employee who neglects to wash her hands or stay 6 feet away. If such employees complain to management only to have their complaints ignored, such incidents, coupled with other COVID-19 stresses, can create a workplace violence tinderbox.

A recent Wall Street Journal article[4] reports that there are employees experiencing such frustrations but not even speaking up, fearing negative repercussions from their co-workers or their employers.

Employees who do not feel that their concerns about COVID-19 are being heard may take matters into their own hands by, for example, photographing and confronting other employees to demonstrate perceived violations of required health and safety measures, or by sending emails to co-workers about the safety of the workplace.

Such actions can lead to the types of tensions and disagreements among employees that employers must prepare for, being mindful that under the wrong set of circumstances, employees feeling stress and tension could resort to threatening, harassing or intimidating behaviors toward one another and could even become physically violent where tensions reach a boiling point.

There are proactive steps employers can take to prevent employee behaviors that could spur incidents of workplace violence. The process of safeguarding the workplace begins with revisiting a strong workplace violence prevention policy, and for those employers without a policy, drafting one.

Such a policy includes a straightforward definition of workplace violence and contains a strict prohibition on this conduct in the workplace. A thorough policy provides clear examples of prohibited conduct to employees for additional clarity.

Importantly, the policy must contain well-defined procedures for reporting incidents of threats, violence or other acts that violate the policy. Employers should also include language making clear that employees will not be retaliated against for raising concerns pursuant to the policy in good faith.

To enforce the policy properly, each employer should designate an individual or a team responsible for addressing employee concerns raised under it and to ensure that each complaint is handled properly. Employers also need to ensure that they have a solid process for investigating complaints, including how such investigations are documented, how remedial actions are determined, and how the process will preserve employee confidentiality to the greatest extent possible under the circumstances.

Employers should prepare an emergency safety plan for worst-case scenarios of actual physical violence or imminent threats of it. Employees should know when to call the police and where the nearest exits in each workspace are located.

Drafting or revising a workplace violence prevention policy also presents an opportunity for employers to revisit their anti-retaliation policies more generally and related investigation procedures for employee complaints.

Employers should consider how to structure their collection of and response to employees' COVID-19-related workplace concerns. Anti-retaliation provisions are an equally important consideration, particularly because some municipalities, including the city of Philadelphia, have enacted legislation to protect workers from adverse employment actions as a result of good faith disclosures of COVID-19-related complaints. 

Once written, employers must effectively communicate the contents of a workplace violence prevention and anti-retaliation policy to their employees. Employers may distribute these policies through email, post them on an intranet or post them in conspicuous places — along with mandated requirements such as mask wearing, standing 6 feet apart, etc.

Employees should have no doubt as to what the rules and procedures are so that they do not feel they have to take it upon themselves to educate co-workers. Employers want to avoid a situation where an employee feels that they cannot or will not be heard or that if they do raise a concern, their complaints will not be properly investigated.

Dissemination of these policies can be part of a larger return-to-work training which many states are actually requiring, even if remotely. During training, employers should strive to strike the right tone with employees by candidly acknowledging the enormous strain that COVID-19 has placed on people financially and emotionally.

Employers should reassure employees by outlining all of the steps they have taken to address employee health and well-being — e.g., daily sanitization efforts, enforcement of hygiene standards or hiring of additional security to enforce mask-wearing rules for employees that interact with the public.

They should also remind employees of any resources available to them to help manage their wellness, including employee assistance programs. Employers should emphasize during training that they want to listen to employee concerns and have therefore established proper channels for enforcing safety rules or for raising related concerns. 

In addition to formal training, employers should arrange for periodic check-ins with employees to informally see how employees are doing and ask if there is anything they want to discuss. Every employee is encountering new stressors living with the uncertainties of this pandemic, so empathy should be the driving force behind discussions with employees.

Employers should acknowledge that these are difficult times and that people are confronting enormous strains. If employees open up about stress or concerns for safety in the workplace, they should be directed to appropriate resources, such as an employee assistance program or human resources.

Employers should also conduct specific training for managers and supervisors, reinforcing the need to run all complaints or concerns of potential workplace violence through the predesignated channels, even those concerns that they might believe are unfounded. Employers should remind managers that with the high-pressure environment and stresses of COVID-19, it is important that people feel heard and listened to; dismissing an employee's concern out of hand can lead to further tension and a potentially explosive situation.

Employers should discuss violent behavior warning signs with managers, acknowledging that while these are difficult times for everyone, the mental health impacts of COVID-19 might impact some employees more severely than others. Employers must be clear, however, that it is a manager's job to report behaviors and concerns through predesignated channels, not to diagnose or treat employees.

Managers should know what is expected of them in the event of threatened or actual violent episodes. For those employees charged with investigating complaints, they should be reminded that all investigations must carefully follow predetermined protocols.

Employers may also consider providing mental health and other resources directly to employees to help alleviate or deal with stress. Many employers are putting on programs for employees regarding mental health, sending reminders of self-care, encouraging vacations, or providing exercise or mindfulness programs. Attending to the mental health of employees during these unprecedented times may help avoid stress from bubbling into clashes and possible violence in the workplace.

The recommendations discussed above aim to prevent and address COVID-19-related tensions and hostilities between employees that could result in threatening or violent conduct in the workplace. Clearly written policies and procedures that address workplace violence prevention and retaliation concerns and proper employee training, together with empathetic and ongoing communications from management, will serve to diffuse interpersonal frictions and foster an environment of open communication and understanding where employees are comfortable, supported and safe.

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Lauri Rasnick is a member and Elizabeth McManus is senior counsel at Epstein Becker Green.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] 29 U.S.C. § 654(a)(1).

[2] https://www.osha.gov/workplace-violence.

[3] https://www.nytimes.com/2020/07/29/business/coronavirus-masks-stores-walmart.html.

[4] https://www.wsj.com/articles/as-offices-reopen-amid-coronavirus-workers-clash-over-masks-cubicle-barriers-and-lysol-11594468800.

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