Recent workplace shooting incidents across the country have caused many employers to realize that they need a contingency plan in case they have an active shooter situation at their work site.

Potential Liability

To protect your workforce and avoid liability under various laws, you should work with your management or security advisers to identify and develop an appropriate workplace critical incident protocol or plan.

First, you must consider what laws and government agencies may be at play in the case of a workplace shooting, as well as what has been expected of employers in the past.

One government agency sure to get involved if there is an active shooter situation in your workplace is the Occupational Safety and Health Administration (OSHA). OSHA has the ability to fine employers if reasonable steps to maintain a safe workplace are not taken. What the agency considers "reasonable" is subjective and will depend on the specifics of each case.

Certain industries have greater liability exposure under the Occupational Safety and Health Act, including late-night retailers, liquor stores, banks, hospitals and home healthcare workers. These industries are expected to have a plan.

If your company is required to have an emergency action plan, make sure it addresses active shooter situations.

Though in the past OSHA has not expected all industries to have a plan to address shootings, this may change as the perception grows that mass shootings have become more common. No matter the industry, employers should consider developing a plan for dealing with active shooter situations.

When developing your plan, it is important to examine several facets of your workplace, including workplace culture, physical locations, operational systems, areas of ingress and egress (physical and electronic), security systems, human resource protocols, and how and where employees are working.

Equally important is identifying the specific state laws that impact how to best position memorializing and implementing your plan.

For example: How has your state handled workers’ compensation claims arising from violent incidents? How have courts applied your state’s intentional tort statute? What gun safety zones and restrictions on concealed carry exist in your state?

It is also important to consider any available general guidance from your state’s attorney general and local law enforcement on concealed carry in the workplace and active shooter preparation.

Creating a Plan

As a starting point, you should take these three important steps:

1. Evaluate Threats

Identify a core team, comprised of representatives from human resources, operations, facilities, security and IT. The core team should immediately gather all documents relevant to understanding the day-to-day workplace, communication systems and access points.

2. Develop your plan, and include at least the following:

• a system for how to notify people inside and outside your building when it is under siege and expectations on contacting law enforcement;
• a roster of your people and accurate layouts of your facility so law enforcement is best equipped to handle the incident upon arrival;
• steps on how to continue operations if your workplace is closed for days or weeks as a crime scene;
• a list of counseling resources you immediately will make available to your workers within the hours following the shooting; and
• a detailed description of your plan and training programs.

3. Train Employees

Consider appropriate training for managers and employees so they know how to instinctively respond if there is an active shooter. During the training, employees should view the U.S. Department of Homeland Security’s video "Run. Hide. Fight."

In addition to leveraging online resources, you may want to contact your local law enforcement for their input. Typically, they are more than willing to help you craft protocol and employee training programs based on your company’s needs.

Keep in mind that the execution is just as important as the plan. If you fail to enhance security or conduct training as stated in your plan, it is likely that this will be used against you in any litigation should there be an incident.

Preventive Measures

Beyond development of a plan, employers should take steps to minimize the risk of an employee-involved shooting. Employers may be held liable for failing to act reasonably to prevent workplace violence when an employee is involved.

This may involve one of two scenarios: either an employee is the shooter or an employee is the target of an outside shooter, often connected to domestic disputes.

In either situation, employers may be liable under the Occupational Safety and Health Act for failure to adequately protect their workers from violence in the workplace.

Many state laws also impose upon employers a general duty of care toward their employees to provide a safe workplace. Victims of a workplace shooting may bring claims for physical and mental harm against employers.

If an employee is the shooter, victims also may assert claims for negligent hiring or retention. To minimize risks, employees and managers should be trained to spot and report the warning signs. Indicators of violence or aggression include employees who are experiencing emotional difficulties, as well as expressions of contempt for fellow workers or supervisors.

Signs of paranoia also may be an indicator of increased potential for violence. More direct signs of potential workplace violence might include an obsession with violence or firearms, making threats, actual fighting with co-workers, and what has been referred to as “minor” violence.

Examples of "minor" violence could include bumping into a co-worker. This also could include threatening verbal confrontations by aggressive co-workers. Moodiness, symptoms of withdrawal or other unusual behavior also could presage potential aggressive or violent behavior.

In addition, there is a trend toward prohibiting bullying in the workplace. Some argue there is a correlation between bullying and violence.

Legislatures have been reluctant to enact laws mandating civility, but employers should take aggressive workplace behavior seriously. Even though the workplace bully isn’t necessarily the next mass shooter, unchecked workplace bullying often leads to claims of discrimination.

Not only must employers be vigilant when it comes to minimizing the risks of employees becoming active shooters, but they also should consider encouraging employees to contact human resources in the event of domestic abuse. An employee assistance program may provide resources for the employee, and providing notice can assist the employer in following its Plan or otherwise be on heightened alert for any signs of trouble.

Conclusion

Gun violence is nothing new, and employers cannot prevent every single risk of harm. That said, it is unwise for employers to disregard the fact that these situations could happen at anytime, anywhere.

Managers must work with outside subject matter experts to develop policies and procedures to minimize the risk of experiencing a shooting, as well as to ensure that employees know how to react in the event the unthinkable happens and gun violence comes to your workplace.