The final day of the ABA Workplace and Occupational Safety and Health Law Committee Midwinter Meeting began with a panel discussion on mental health, behavioral issues, and workplace violence. Many employers and practitioners have observed state plans making significant efforts to develop and implement workplace violence prevention plans. For example, California’s prevention plan requirements for general industry went into effect on July 1, 2024. Other states, like New Jersey with its panic device laws and New York with its Retail Worker Safety Act, are developing new laws for workplace violence safety in specific areas, industries, or workplaces.
With acts of violence being the third highest form of occupational workplace injuries, the crux of the panel’s discussion centered on workplace behavior and how employer and employee training can further develop a safe workplace culture. The panel discussed an interesting case involving a mall shooting by a patron in an open-carry state. The mall prohibited firearms, mall security informed the patron multiple times that he could not carry the weapon within the mall, and, after being asked to leave, he left without issue or threat each time. Unfortunately, the final time, he engaged in a violent act. Ultimately, the ALJ found that a shooting by the patron could not be cited as a workplace violence hazard under the general duty clause. A key point in this case involved foreseeability, which the ALJ determined was not truly present with respect to the employer’s liability. Thus, according to the ALJ, citing an employer for the hazard posed by a mass shooter is beyond the scope of the agency’s authority under the OSH Act.
Although the ALJ’s decision is favorable for employers, providing support against citations for unforeseeable and criminal acts, this case raises some hypotheticals for employers to consider, such as the interplay and balance with potential discrimination lawsuits. The panel highlighted that while risk management groups should proactively identify and develop steps to address potential violence within the workplace, they must carefully implement any plans in a non-discriminatory manner to avoid transitioning from an OSHA citation to civil litigation.
After the panel concluded its discussion on workplace violence issues, we took a trip down memory lane to our law school days. However, instead of a mock trial, we observed a mock inspection featuring a non-employee third party attempting to gain access to a worksite on behalf of a union. This demonstration showcased the benefits, strategies, and concerns related to the new walkaround rule.
As many are now familiar, OSHA’s walkaround rule expands the definition of “authorized representatives” to specifically include non-employee third parties, such as union organizers, if good cause can be shown for their necessity in conducting a thorough and effective workplace inspection. Despite ongoing litigation challenging the rule as arbitrary, capricious, and unconstitutional, it remains the law for employers.
As we’ve emphasized from Day 1, with the shift in presidential administrations, there is a possibility the walkaround rule could change, potentially being stripped away. However, for all intents and purposes, the rule is currently in place and enforceable.
The mock inspection, although comedic, emphasized some unique considerations, including potential impermissible advance notice to non-employee third parties, as well as strategic decisions on whether to proceed with the inspection or require the agency to seek a warrant. While no one is sure whether this rule may be subjected to a federal rollback, until that day comes, employers and practitioners have a lot to consider while it remains effective.
After a short break, we reconvened for another panel discussion on employee complaints, injuries, and return to work. This discussion focused on avoiding discrimination, particularly concerning workers’ compensation claims and disabilities in the context of workplace injuries. The panel highlighted that both employers and employees benefit from extensive documentation. Several examples of documentation were noted during the discussion, such as workers’ compensation forms be provided immediately upon notice of a potential workplace injury, as well as documents reflecting the interactive process for employees seeking to return to work or obtain accommodations for a workplace injury.
From an employer’s perspective, the big picture question was, “How do we make the carrot more approachable than the stick?” There is no question that employers want employees to come forward with concerns over workplace safety, but realistically, not every employee may feel comfortable or trustful when approaching management. More specifically, some employees may have the belief that they may face potential consequences for reporting an issue. The consensus of the panel was that the relationship between employers and employees is a foundational building block for promoting safety policies. This relationship encourages continual reporting to management and fosters an ongoing dialogue on ways to improve the workplace.
The conference’s final session of the day concluded with a panel discussion on the challenges associated with attorney-client privilege and risk assessments. Employers and practitioners recognize the ongoing need to conduct internal audits and risk assessments to promote and develop safe workplaces. While there are several benefits to conducting internal safety and health audits and risk assessments, the documentation associated with these efforts could also serve as a potential roadmap for OSHA citations.
From a benefits perspective, aside from the obvious identification of hazards and risks to protect employees, there is the ability to promptly address and mitigate these hazards before they result in injury or citation. Additionally, these audits can be used proactively to demonstrate to OSHA that the company addresses safety issues and has effective safety programs. Lastly, should a citation arise, the audits can support defenses, such as the lack of employer knowledge, by showing that ample steps were taken to identify all cognizable hazards.
However, with every benefit, there are associated risks. For example, if audit recommendations have not been addressed when an incident or inspection occurs, the audit could be used as a roadmap, highlighting knowledge of a hazard that was not addressed. Furthermore, statements made in the audit or risk assessment reports could be used as admissions in litigation.
Thus, the panel’s discussion emphasized the importance of considering performing these types of assessments under attorney-client privilege, particularly while efforts to address findings are underway. The key takeaway from a privileged assessment is its purpose: providing legal advice. From an ethical standpoint, attorneys for the employer, whether in-house or outside counsel, need to be mindful of applicable ethical rules, such as confidentiality. While a privileged assessment will need to be implemented and some degree of information will need to be shared with the company at large, the panel recommends clearly separating confidential documents, being specific with the information conveyed to the company, and securing a system and process to maintain documents and information shared under the applicable privileges.
The decision to conduct these assessments under privilege is a critical consideration for any employer. It is vital to ensure that everyone involved understands how the audit process, its findings, and, most importantly, the legal advice are shared and the manner in which they are shared. We thank the ABA for hosting another great conference and we look forward to returning to next year’s Midwinter Meeting in 2026.
