Zero Tolerance of Workplace Violence: From Moral Stand to Workable Policy

Although workplace violence has become an epidemic, health care settings are at especially high risk. One of the most popular approaches to the problem is the so-called "zero tolerance" policy. Zero tolerance has appeal because it claims the moral high ground and makes organizations feel like they are taking a real stand. But is it really an effective way to combat workplace violence?

Defining Our Terms
Workplace violence is a broad concept that may encompass threats and attacks against employees by strangers, customers, clients and others from outside the organization. But this article focuses on one aspect of the problem: violence by one employee against another.

Workplace Violence & OSHA
Although workplace violence has always occurred, awareness of the problem is relatively recent. This gap between awareness and existence explains why there are relatively few laws on the subject. The federal agency entrusted with protecting workers from job hazards, the Occupational Safety and Health Administration (OSHA), has yet to formulate a specific standard for workplace violence—although many states, most notably Cal-OSHA, have.

But do not confuse lack of a specific standard with lack of a legal obligation. The so-called OSHA general duty clause (GDC) (Section 5(a)(1) of the Occupational Safety and Health Act) requires employers to provide a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm." For decades, OSHA has made it abundantly clear that violence may be such a "recognized hazard" and that failure to protect against it may constitute a GDC violation. (See, for example, OSHA Interpretation Letter, 12/10/92.)

Zero Tolerance
When a hazard is or should reasonably be recognized, employers must take reasonable steps to combat it. In many cases, workplace violence is treated as an HR problem for which a "zero tolerance" policy is the preferred solution. Zero tolerance means that employees who engage in it are subject to immediate discipline up to termination without second chances. In other words, under zero tolerance, workplace violence is a fire-able transgression even for a first offense.

This signals that the organization considers workplace violence more serious than other offenses. Few would argue with that logic. But adopting a zero tolerance policy isn't necessarily a no-brainer. The biggest obstacles include fear of antagonizing a union or the misconception that discipline won't be upheld in a court and labor arbitration. But in fact, courts and arbitrators will sustain discipline if they think it's necessary to protect the workforce.

In the words of one arbitrator: "An employer made aware of physical violence and threats of physical violence has little alternative but to take all disciplinary steps up to and including discharge, to protect its staff from acts tantamount to workplace terrorism."

The case law more than backs this up.

Easy to Adopt, Hard to Enforce
Theoretically, a zero tolerance policy is enforceable, provided that termination is necessary to protect others in the workplace. But as a practical approach for combating workplace violence, it has its limitations. Simply put, zero tolerance is often too inflexible to implement.

Zero tolerance works best in the most serious cases involving physical assault. After all, it is hard to defend giving individuals who engage in such acts a second chance. The problem is that workplace violence often takes more subtle forms including threats and verbal abuse. The severe penalties provided by zero tolerance may be too harsh for these offenses.

In addition, there may be mitigating circumstances or reasons that if they do not justify at least explain an employee's violent behavior. For example, maybe the employee was acting in self-defense or just engaging in horseplay. Organizations should be free to consider all of these circumstances in their decisions and not be boxed in by a zero tolerance policy.

Example: A lab worker picks up an object and swings it at a co-worker's head stopping at the very last second. Everybody realizes that it is just a joke, albeit a stupid and dangerous one. The lab thinks the worker should be warned and perhaps suspended but considers termination too harsh. But the zero tolerance policy calls for immediate termination of workers who engage in or threaten violence against other workers. So the lab has to choose between ignoring the policy and ignoring the offense.

It might seem easy to simply ignore the policy and give the worker a break. But that could lead to unforeseen legal consequences: Letting one worker get away with an offense undermines the legitimacy of a zero tolerance policy and makes it harder to enforce on future occasions. Thus, as with all disciplinary policies, labs should consistently apply policies and impose disciplinary action to increase the chance the court or arbitrator will find the disciplinary action valid.

Solution: How to Tailor a Workable Policy Labs need to recognize that workplace violence is a safety issue and adopt a plan to manage it. The first step is to ban violent behavior. Two bits of advice:

Avoid Knee-Jerk Zero Tolerance. Do not make termination automatic. Like the Model Policy on page 6, you should give yourself leeway to investigate all the circumstances and impose whatever disciplinary action you consider appropriate up to immediate termination.

Define Violence. Your workplace violence policy should also clearly describe the forms of behavior that you consider unacceptable. Many people think of workplace violence as the use or threat of physical force. But the problem is much broader than that. It includes bullying, harassment, intimidation, affronts to dignity and the creation of poisonous work environment. It also includes a wide array of conduct including acts, gestures and verbal comments.