Workplace Safety Laws Face Limitations Against Gun Violence

The unpredictable factors leading up to a mass shooting in a Manhattan office building highlight the limitations of a newly-enacted New York law and others dictating an employers’ responsibility for responding to gun violence in the workplace.

A gunman killed at least four people and himself at a Park Avenue office tower that houses Blackstone Inc., Loeb & Loeb LLP, Rudin Management, and the National Football League, among others. Investigators are still trying to figure out the motive of the identified shooter, who is a 27-year-old from Nevada. A police officer and a Blackstone employee were killed, and several others were injured.

New York’s workplace violence law—developed in part to respond to gun violence—became effective in June and only covers retail businesses. Retailers in the state are required to develop policies and train employees about preventing workplace violence, including conducting active shooter drills. It also points to certain factors that increase a worker’s exposure to harm, such as working alone or in small numbers and uncontrolled access into the workplace.

“None of these factors were present in the Park Avenue case, which highlights that violent situations are extremely variable, making it hard to legislate what is appropriate for employers to do,” said Stewart J. Schwab, a Cornell University professor of law.

State and federal lawmakers may want to enact similar legislation as New York’s workplace violence law, but not as a result of the Park Avenue shooting, Schwab noted.

Other states including California have either adopted or are considering some form of workplace violence prevention measures this year.

The legislators are responding to growing concerns about on-the-job violence, particularly mass shootings, with laws geared toward keeping employees safe. Just over 20,000 US workers suffered from a workplace attack that caused them to miss at least a day of work in 2020, and 392 were victims of homicide, according to the US Bureau of Labor Statistics.

Security consultants say employers should offer annual training on how to respond to gun violence in the workplace and regular guidance on dealing with crises.

Active Shooter Response: 3 Outs

Bob Chonka, owner of Sollah Interactive, which offers security training, said companies can follow the “three outs” system for responding to an active shooter. The three outs, commonly recommended by the security firm Strategos International, refer to “Lock Out, Get Out, and Take Out.”

This model is superior to the linear “run, hide, fight” model—which is based on instinct and can oftentimes leave those running and hiding in compromising positions, according to Chonka, who has worked with Strategos to produce security trainings.

“If you took a conference table and chairs and you put it in front of the door against the wall, there’s no space for that door to swing open,” said Chonka, referring to the lock out approach.

He said proper training of the three outs will allow individuals to assess whether getting out of an area where an intruder has entered, locking an intruder out of the area, or taking the intruder out is necessary to ensure their safety.

Still, running through active shooting training should happen at a minimum annually and quarterly in smaller groups to ensure workers can effectively stay aware of these crisis situations in the workplace, Chonka noted.

“The best thing to do is to be proactive before something like that happens,” he added.

OSH Act Limitations

At the federal level, the US Occupational Safety and Health Administration is limited in its enforcement involving gun violence in workplaces.

The OSH Act can apply to mass shootings under the agency’s use of the general duty clause. But it’s rarely invoked because there needs to be a foreseeable recognized hazard and a feasible means for abatement.

Due to the unforeseeable nature of a crisis situation like what took place in the Manhattan office, it’s extremely difficult to determine where an employer’s responsibility lies in these moments, attorneys say.

“There wasn’t anything connecting this person to this office; it was an unfortunate random act,” said Rachel Conn, an attorney focused on workplace safety at Conn Maciel Carey LLP in San Francisco. “You probably aren’t going to see a lot of laws really be applicable here because of that.”

The agency has still issued citations for shootings in the workplace. OSHA cited a New York City employer in 2015 under the general duty clause after an active shooter killed a security guard. The agency noted the company could’ve properly trained its officer on adequately responding to active shooter scenarios, among other things.

“OSHA looks to the General Duty Clause of the OSH Act when a workplace violence incident occurs and evaluates each incident to determine if there were any risk factors that the employer could have prevented,” said a Department of Labor spokesperson.

OSHA offers training and prevention programs as well as on-site consultations for small- to medium-sized businesses in order to help them develop a safety program.

The agency’s directive for conducting inspections related to exposures to workplace violence primarily focuses on health-care settings where violent incidents are considered reasonably foreseeable. President Donald Trump’s pick to lead the agency told senators in June that OSHA will issue a regulation to address workplace violence.

The agency has attempted in previous years to regulate how hospitals, mental health providers, nursing homes, and social service providers address the recognized hazard.