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Buffalo mass shooting a reminder for employers to prepare for the worst
19/05/2022
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Crime scene do not cross
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John VDLD
John van der Luit-Drummond, Editor

On Saturday 14 May, ten people were killed and 23 were wounded in a racially motivated attack on a convenience store in a Black neighbourhood of Buffalo, New York. Mass shootings in churches, malls, and even schools are sadly nothing new for the American public to digest. Last weekend’s brutal attack was the 198th of 2022, building on the 693 in 2021 and 611 in 2020, according to the Gun Violence Archive.

Data shows that between 2006 and February 2020, 13 mass workplace shootings had been carried out by a disgruntled current or former employee. But even if a mass shooting isn’t specifically tied to a perpetrator’s employment, it will almost certainly take place at someone’s workplace. Amid the increasing frequency of mass shootings, employers would be wise to ramp up their workplace safety programmes in preparation for the worst.

“If employees were faced with an industrial hazard, for example, no employer would hesitate to implement a safety programme to educate employees on how to safely avoid or mitigate those risks,” said Mark Konkel, chair of Kelley Drye’s employment practice.

“Given the horrific moral dimension of workplace violence, there’s a risk that an employer may hope to rely on low probability as protection, and an employer can be forgiven for not wanting to scare employees. But just as no industrial employer fails to implement a safety programme because the risk of an explosion may be low, no employer should rely on hope, or be deterred by fear, in protecting against the risks of workplace violence.”

Although most states do not require employers to implement a workplace violence policy, businesses across America are increasingly thinking of ways to prepare employees for a day they hope will never come. Active shooter training is offered by a number of police departments nationwide, free of charge, while there are a host of private firms that offer advice on reacting to emergency situations.

“Certainly, when an employer offers such training to employees, it shows they care about their workers’ safety and wellbeing. But it is important that any training be voluntary,” said Terri Solomon, co-chair of Littler’s workplace violence prevention practice.

“It is critical that the training be done by a qualified individual, either current law enforcement or former law enforcement, and that it is emphasised that these are recommendations only. Even the FBI and Department of Homeland Security make clear in all trainings that every situation is different, and the employee must decide for himself what his proper course of action is under the circumstances.”

By contrast, Mathew Parker, a partner at Fisher & Phillips, said training designed to prevent workplace violence should be mandatory for employees: “If the training is required and an employee fails to complete it, then they could be subject to discipline by their employer. Employers likely will not receive any pushback from employees about active shooter or other workplace violence prevention training.”

Offering a word of warning against mandatory training, however, Solomon said: “Active shooter training is very stressful. People with PTSD may have a strong emotional response to such training and should never be forced to attend. Also, there have been instances where people have suffered heart attacks during such training.”

While employees may be expected to follow company policy, Konkel said it is critical to remember that training on such a sensitive subject is as much about form as substance. “Effective communication to help employees feel enabled, rather than helpless, is critical: the message needs to be that these risks are low but real, that safety is everyone’s concern, and that the company has a thoughtful, meaningful plan in place to protect its workforce.”

Even if an employer does not provide training from a recognised provider, there is still plenty of guidance from both federal and state governments on how to respond to an active shooter, advised Parker. “On the federal level, for instance, guidance has been provided by DHS, FBI, and FEMA, among others. All the guidance is generally the same: run, hide, and as a last resort, fight.”

Failing to prepare

The risks of failing to implement any form of effective safety programme are, however, manifold. “The aggrieved families of workers whose employers didn’t have a reaction plan in place can file, and have filed, lawsuits. Occupational health and safety laws and regulation also require that employers maintain a workplace that is free from ‘recognised hazards’,” explained Konkel.

“That general duty doesn’t require an employer to be clairvoyant – no one can prevent a truly unpredictable risk. But while an employer may not be able entirely to prevent a workplace shooting from materialising, it certainly can implement a programme that trains employees on how to react for their own protection. Without that, an employer is certainly open to a risk that it could have done something more to help protect its workforce, but didn’t.” 

Employers should be aware of the four common categories of workplace violence: intimate partner violence; employee-on-employee violence; customer-on-employee violence; and stranger-on-employee violence. “Employers are best served by focusing on the first two categories. This is because they often have red flags that show up in the workplace,” said Parker. “Most often, an employee does not just snap. Rather, a number of warning signs [may] show up in the lead up to an act of workplace violence.”

“While the ultimate legal risks don’t change that much depending on whether the shooter is a former or current employee, the chance that an employer may be aware of that risk is potentially much greater when they may be aware of a history of violence,” added Konkel. “If the employer is aware of anything like that, it should absolutely bar that kind of employee from entering its premises.”

When workplace disputes do flare, a ban on firearms on company premises could, in theory, allow for cooler heads to prevail. However, such a policy might be easier said than enforced. “This is a tricky issue under US state law, with some states specifically allowing workers to keep guns in their cars, for example. That said, the majority of states do not protect some right of an employee to bring a firearm to work,” explained Konkel.

“So, with the caveat that you should check with legal counsel for specific state-law guidance, an employer should maintain an absolute prohibition on bringing a firearm to work, to the fullest extent specific local laws allow for that kind of prohibition.”

The aftermath

In the wake of an active shooter, Parker advised that employers should proactively communicate with employees about employee benefits they may rely upon. These could include information on health insurance benefits, employee assistance programmes, accommodations under the Family and Medical Leave Act and Americans with Disabilities Act, disability and life insurance, or other employee-leave policies. 

“The trauma associated with an active shooter incident will be gigantic,” added Parker. “Many experts stress that employers should place an emphasis on providing emotional support to impacted employees, like through an employee assistance programme, or similar, which provides counselling, assessments, or referrals.”

While an employer should take every conceivable step to support its workers and their families in the aftermath of an attack, there are, of course, legal considerations, too, said Konkel. “Assuming a company took reasonable steps to protect its workforce, it needs to communicate carefully when expressing compassion and support to avoid the impression it’s somehow admitting that it didn’t take the right steps. But short of that caveat, there’s virtually no support that would be inappropriate.”

 

Proactive safety measures

Given that mass shootings tend to occur in some sort of workplace, employers must take steps toward preventing workplace violence, says Fisher & Phillips partner Mathew Parker. Steps that organisations can take include:

– Creating a Threat Assessment Team tasked with developing a definition of workplace violence, evaluating the workplace for safety issues, making decisions necessary to keep employees safe, and deciding the response to instances of workplace violence.

– Conducting a Workplace Safety Audit that entails a physical analysis of the workplace and a review of who can access which parts of the building and how; whether portions of the building can be locked down; whether there is adequate lighting; whether individuals are protected when they work alone; the need for alarms and panic buttons; ideal hiding places in the event of an active shooter; and alternative exits.

– Conducting targeted training, which covers topics such as the workplace violence policy, the complaint and investigation process, the workplace violence safety plan, recognising the red flags for intimate partner and employee-on-employee violence, active shooter, and bystander intervention.

– Being mindful of key workplace stressors, such as layoffs, mergers, changing workloads, new management, new technology, and discipline or termination.