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Duty of Care: Are You Prepared for Any Threat to Your Business?

Kelly Moore
October 4, 2023

In the past, I have written about the lack of specific guidelines and mandates around emergencies within the workplace, specifically workplace violence. We are speaking about those similar to the ones in place for our schools. That is about to change.

But first, let us briefly review the primary law that exists intending to protect your staff from all workplace emergencies: OSHA’s General Duty of Care. While I am paraphrasing, here is essentially what it says: Every employee has the general duty to protect their employees from all known hazards and threats. It would be hard for anyone to argue they did not know workplace violence was a potential hazard. They may have the perfect workplace and culture, but violence is everywhere we look. Having said that, OSHA doesn’t usually inspect businesses for this threat. They will, however, if they get a complaint from someone. And recently, these complaints have been on the rise. Additionally, OSHA has a past practice of launching an investigation after the fact. This means once there is an incident with injury or death within the workplace, the employer must report the incident. This report will likely trigger an investigation, or a review at a minimum.

During these previous discussions, I suggested it was just a matter of time before someone, somewhere, would start mandating employers to implement comprehensive workplace violence prevention plans. The California legislature passed a bill on Sept. 12, 2023 requiring companies to create workplace violence prevention plans. Under SB 553, set to go into effect Jan. 1, 2025. While this bill is somewhat limited in scope, I imagine it will be expanded upon quickly in the legislative arena and how it will be interpreted. It won’t surprise me to see similar legislation adopted across the nation. To me, this is just the beginning and getting a foot in the door.

Once we start walking down the path of “Workplace Violence Prevention,” we can quickly see where this is likely to go. The prevention of violence in the workplace starts with preventing the actual violence. There are many steps to preventing violence in your workplace: reporting and training on how to report potential violence are just the tip of the iceberg. Once a report has been submitted, what happens next? Is just knowing about the potential for violence enough? What happens if you know about the potential but can’t stop it from happening? What plans do you have in place to not only prevent violence from occurring but also to respond to acts of violence should they occur? While acts of violence have a real potential to occur, what about the other emergencies that are far more likely to happen in your workplace? As the employer, we must do our best to protect our employees. We must look to predict what will likely happen to our employees and take action to prevent and mitigate those that will likely harm our employees.

To illustrate what I am speaking about, I want to draw your attention to one of the biggest heroes of the 9-11-01 tragedy, Cyril Richard Rescorla. Mr. Rescorla was the Security Director at Morgan Stanley on the 44th floor of one of the World Trade Center Buildings. He and his friend, Daniel Hill, looked at the threats to the World Trade Center where his employees were housed. When he and Hill went to explore his greatest threats, they determined their current most significant threat to their employees was the potential for a bomb being placed in the underground parking structure. He attempted to get the Port Authority to increase security for the parking structure but was unsuccessful. Instead of being defeated by that response, he began training all the employees, including high-level executives, who complained all the way, on how to evacuate the World Trade Centers quickly. Three months later, they had the bombing that occurred approximately 30 feet from where Rescorla and Hill determined was the location with the greatest vulnerability. Fast forward a few years, and they determined their next significant threat was having a plane fly into the building. Rescorla and Hill were confident enough that this would happen, so they tried to convince Morgan Stanley to move their operations to New Jersey. They argued that it would be much safer in New Jersey than in New York City. On September 11, 2001, two planes flew into the World Trade Center Twin Towers. However, because of Rescorla’s persistence in training his employees, of the approximately 3700 employees of Morgan Stanley in the World Trade Center, all but 13 perished, one of whom was Cyril Richard Rescorla, who had returned to the Twin Towers to help others evacuate.

While I am not suggesting that everyone go to this extreme and that your threats are this extreme, the story here is that Rescorla knew what his threats were and took action to mitigate them. He addressed everything in his power to make sure his employees were as safe as he could make them. And that is all any of your employees can hope for.

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