Mandate for Guards to Use Bulletproof Vests Challenged in Court

Dec. 27, 2018, 8:09 PM

Security companies could be required to provide their armed guards bulletproof vests and mandate employees wear the gear, if federal workplace safety regulators win an ongoing court case.

At issue is the Occupational Safety and Health Administration’s 2016 decision to cite a private security contractor, Schaad Detective Agency of York, Pa., for not requiring an armed guard to wear a vest provided by Schaad. The guard died during a robbery of a Pennsylvania Turnpike toll plaza.

“It would impact the entire industry” if the OSHA citation is upheld, Schaad’s president, Russell Wantz, told Bloomberg Law.

There is no industrywide policy or standard calling for security guards to wear protective vests, Wantz said. If courts rule against Schaad, the federal government could force employers to adopt policies or face fines.

Armed Robbery

The incident prompting the OSHA citation was the March 20, 2016, armed robbery of a rural toll plaza. Around 6:45 a.m., a man held two plaza workers at gunpoint, forcing them into a building where he tried to tie them up, according to a court summary of the attack.

At about the same time, an unmarked van from the turnpike operators arrived to pick up cash from the plaza. Riding in the van was an armed guard from Schaad, 71-year-old Ronald Heist, who had spent 50 years as a law officer and guard.

One of the workers the robber had tried to restrain escaped from the building and told Heist about the ongoing robbery.

Heist left the van and a short time later was confronted by the robber who shot and killed him, using a rifle.

The robber died minutes later in a shootout with Pennsylvania State Police officers responding to an emergency call from the toll workers.

OSHA Investigates

OSHA opened its investigation on March 22 and cited Schaad six months later for allegedly violating a rule requiring employers to ensure their workers wear protective equipment (29 C.F.R. 1910.132(a)) and leveled a $12,471 fine.

Schaad challenged the citation and in October 2017 a two-day trial was held in front of an administrative law judge from the Occupational Safety and Health Review Commission, the independent agency that hears challenges to OSHA citations.

Witnesses for Schaad said the company’s guards had been watching over turnpike toll revenue transfers for 20 years without a robbery or violent assault. While the company had voluntarily provided armed guards bulletproof vests, the decision to wear the gear was left up to each employee.

OSHA witnesses countered that an agency 2013 letter of interpretation regarding bulletproof vests put security agencies on notice that the agency expected vests to be provided and worn.

No Notice

Judge Dennis Phillips issued his decision in November 2018, agreeing with Schaad that the rule and OSHA guidance didn’t mandate Schaad to supply vests and require them to be worn.

Phillips wrote, “Yes, just as being shot is undisputedly a severe hazard, a bullet-proof vest is a form of PPE (personal protection equipment). The question, however, is whether Respondent (Schaad) had notice that they were required to be worn by its armed security guards at its worksite on March 20, 2016.”

However, on Dec. 20, the review commission announced that rather than affirm the judge’s decision in favor of Schaad, the three-member commission would consider the case.

As of Dec. 27, the commission hadn’t said if it will request attorneys for OSHA and Schaad to present their arguments at a hearing or ask for public comment.

Following Heist’s death, Wantz said, Schaad on its own changed its policy on vests and now requires its armed guards to wear the gear.

OSHA was represented by attorneys Oscar Hampton and Michael Doyle of the Department of Labor’s Office of Solicitor in Philadelphia.

Schaad was represented by Larry Heim of Katherman, Heim & Perry in York, Pa.

The case is Sec’y of Labor v. Schaad Detective Agency, OSHRCJ, 16-1628, 11/13/18.

To contact the reporter on this story: Bruce Rolfsen in Washington at brolfsen@bloombergenvironment.com

To contact the editors responsible for this story: Terence Hyland at thyland@bloomberglaw.com; Simon Nadel at snadel@bloomberglaw.com

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