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    Physicians have legal obligation to provide safe working environments

     

    Dr. Employer has a large, multi-office dermatology practice. He has a practice manager, clinical coordinator and human resource director. A year ago, a disgruntled medical assistant was terminated by the human resource director.

    Six months ago, the now terminated ex-employee returned to the dermatology office and killed two employees and wounded two others. Last week, three of Dr. Employer’s workers (two who were wounded in the incident and one who was not), sued the doctor for not having a violence prevention program. Is Dr. Employer liable for this?

    On Aug. 24, 2012, a 58-year-old unemployed designer of women’s clothing walked near the Empire State Building in New York City and, amidst the hustle and bustle of Manhattan’s rush hour, shot and killed a former co-worker he blamed for his job loss. Although the incident made national headlines, workplace violence is not a new problem.

    The Occupational Safety and Health Administration (OSHA) defines workplace violence as “any act of or threat of physical violence, harassment, intimidation or other threatening disruptive behavior” at a work site. OSHA statistics show that some 2 million people a year report being victims of violence at work.

    Workplace violence not only compromises employee safety, it also has legal implications. In 1996, OSHA established federal guidelines for businesses implementing violence-prevention programs. The guidelines, although not mandatory, are often cited in workplace violence-related lawsuits.

    What to watch for

    Is there a profile of the violent employee? It seems that after every workplace tragedy, people always wonder what caused the shooter to “snap.” In reality no person snaps. The better question, and the one with legal implications, is what was missed.

    Behavioral studies have shown that workplace offenders are usually male employees who are loners and have been that way since childhood. They tend to have few friends and/or relationships and cannot handle criticism. Of note, they are capable of excelling at their jobs and often live to work rather than working to live. That is why a poor performance review or firing is more of a catalyst for workplace violence than is financial pressures. Such events threaten the very core of the offender’s identity — his performance at work.

    Needless to say, criticizing or terminating an employee who fits the above description hardly guarantees a shooting in the office. Plenty of terminated employees will never, in their lives, commit an act of violence.

    What is important to recognize is a series of employee actions that can indicate imminent violence. These extend from Level 1 that includes indirect threats and menacing behavior, to Level 4 and 5 that include signs of depression, substance abuse and withdrawal. Another frequent association is that of abusive boyfriend, husband, ex-boyfriend or ex-husband. Some signs of abuse may be unexplained absences, harassing phone calls, unexplained injuries and an associated decline in work performance.

    Establishing policies

    In the end, recognizing potential offenders is meaningless without a legal framework in which to address them. This starts with a written policy, similar to that of a sexual harassment policy, on workplace violence. All employees should be regularly trained on the policy and submit signed agreements to act in accordance with it.

    Physicians should also have a system for documenting contraventions of the policy. It also behooves dermatologist employers, or their designated staff, to conduct very basic behavioral analyses prior to layoffs or negative performance reviews. If that analysis suggests that the employee or ex-employee is a potential risk, some sort of security personnel should be notified before any punitive action is undertaken.

    Dr. Employer has both a legal and moral obligation to provide a safe working environment that protects his employees. He is not immune from these risks. If he has no written policy and procedures on the issue, he may be susceptible to lawsuits when a tragedy takes place. DT

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    David J. Goldberg, M.D., J.D.
    Dr. Goldberg is Director of Skin Laser & Surgery Specialists of New York and New Jersey, Director of Mohs Surgery and laser research, ...

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