Active Shooter Liability

Legal aspect regarding Work Place Violence and Active Shooter Preparedness

One of the regulations under the Occupational Safety & Health Administration Section OSHA of the United States Department of Labor *General Duty Clause, Section 5 (a)(1) states, “Each employer shall furnish to each of his/her 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/her employees”.

The Census of Fatal Occupational Injuries (CFOI) conducted by the Bureau of Labor Statistics (BLS) provides an annual count of fatal work injuries in the United States, including homicides.

For the past 10 years there has been a reported 43% increase of homicide *shooting by another person in the work place. Currently, on average, 46% of all homicides in the work place occur due to shooting deaths, and that is on track to continue to increase annually.

According to Michigan Chamber of Commerce; Under the OSHA General Duty Clause, employers are required to provide a safe workplace free from recognized hazards that can cause death or serious injury to employees. This does not mean only hazardous materials and conditions, which requires a “hazard identification, hazard mitigation, hazard control” response. Employers must now address the “hazard” of an aggressive intruder or active shooter who means to do harm to people in work settings.

http://www.michamber.com/osha-clause-safe-workplaces-applies-aggressive-intruders-and-active-shooters

“Recognized Hazards”
In a workplace where risk of violence and serious personal injury are to be “recognized hazards”, the general duty clause would require employers to take steps to minimize these hazards.

Failure could result in the finding of an OSHA Act violation.
Recent court rulings relative to liability lawsuits have shown active shooter scenarios are now considered a “recognizable hazard” to employees.

On January 26th, 2013, The White House announced twenty-three executive actions to reduce gun violence in the United States. While some of these actions are controversial and political in nature; one of them – Number 12 – is truly an apolitical, bi-partisan approach to solving threats of violence in our schools and public institutions: It reads in whole ““Provide law enforcement, first responders, and school officials with proper training for active shooter situations.”

Executive Action 12 of January 26, 2013:
“Provide law enforcement, first responders, and school officials with proper training for active shooter situations.”

Recent court rulings throughout the country have allowed negligence suits filed by victims of Active Shooters to proceed against employers for failing to provide defensive training to their employees. In other words,

Legal Liability
Violations of the OSHA regulations can result in employers receiving fines and will likely involve a civil lawsuit. Recent court rulings relative to liability lawsuits have shown that active shooter scenarios have become more prevalent and are now considered a “recognizable hazard” to employees. These rulings by the courts puts the burden on employers to provide training to their employees on how to recognize indicators of potential active shooters as well as how to respond when an active shooter situation occurs. If the training is not provided, it opens the door for a civil liability against the business.

Example of a recent court ruling
In a July 2, 2013 court decision from Hennepin County, Minneapolis, MN, the court found fault with the employer for negligence and failing to train their employees. District Court Judge Denise Reilly allowed two negligence counts to proceed against the company, Accent Signage. The civil case was brought before the courts by the victims’ family members in response to an active shooter incident at a place of business.

This incident occurred as the gunman, Andrew Engeldinger, walked into his place of employment on September 27, 2012 with a pistol. Once inside, Engeldinger shot and killed numerous individuals before taking his own life. Court rulings like the one above places the liability on the employer to train their employees to recognize the indicators of the potential active shooter and how to respond when they are faced with an actual active shooter incident.

The charges basically follow the OSHA guidelines set forth under the “General Duty Clause” that the employer needed to make training available and reasonable safeguards to be put in place. One of the victims, Beneke’s family sued the Accent Signage and Engeldinger’s estate in February. Releasing the shooters estate from liability and holding the company responsible is a new shift in thoughts regarding pre-planning and prevention. Engeldinger shot and killed Beneke, and four other employees and co-workers along with a UPS deliveryman before committing suicide on September 27, 2012.

This case has now settled for an undisclosed amount of money by Accent Signage to the Beneke family.
Settlement Reached In Accent Signage Shooting Suit

Employer Responsibility

Train employees
• OSHA encourages employers to implement training and notification programs/systems to educate employees on the known risks for workplace violence and the steps that can be taken by employees to minimize the potential for workplace violence.
• Employers should inform employees what has been done to mitigate the risks and what mechanisms are available for reporting hazards or incidents that occur.
• Management and supervisors should be trained on how to effectively respond to workplace emergencies and employee complaints of workplace hazards, to include active shooter situations.

Reassess hazards periodically
• An initial evaluation and implementation of precautions to minimize the risk of workplace violence is a critical first step; however,
• OSHA says that employers should also periodically reassess the potential for workplace violence.
• Employers may consider a regularly scheduled evaluation of whether or not the mechanisms in place to reduce workplace violence are effective and whether there are other mechanisms that can be introduced to further protect employees.
• Trainings should be repeated periodically and updated based on any changes in procedure or risks and staff employment
Aftermath Costly Calculations:
• The threat will never be fully eliminated
• Active assailants seek to do as much damage as possible
• Active shooting events trigger customers to take business elsewhere regardless if there is a connection or not between the shooter and the business
• Business continuity is disrupted across the entire enterprise network, impacting customers, employees, investors, operations, revenue stability regardless of incident location
• Employee productivity and confidence undermined
• Death and injury lead to general liability, worker’s compensation and other casualty insurance claims in addition to litigation
• Property damage can shut down operations and revenue during repair
• Expenses can cause closure due to costly monetary legal compensation

As mentioned recent court rulings throughout the country have allowed negligence suits filed by victims of Active Shooters to proceed against employers for failing to provide defensive training to their employees. In other words, companies can no longer avoid their corporate responsibility to provide training on both how to spot potential active shooters and on how react if so confronted.

Reference:

* OSHA General Duty Clause Sec 5 Duties

OSHA ACT OF 1970 GENERAL DUTY CLAUSE
(UpDated by Presidential Executive Order)
SEC. 5. Duties

a) Each employer —
(1) 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;
(2) Shall comply with occupational safety and health standards promulgated under this Act.

b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act, which are applicable to his own actions and conduct.

**Shootings consist of 4 or more deceased during a single event to include the shooter.