OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at http://www.osha.gov.
June 6, 1996
Congressman Charlie Norwood
U.S. House of Representatives
House Office Building
Washington, D.C. 20515-6100
Dear Congressman Norwood:
This is in response to your letter of April 22, in which you expressed concerns regarding OSHA's release of draft guidelines for workplace violence prevention for night retail establishments. You raised several issues to which we are responding.
Your first concern was that the draft guidelines were released prior to any opportunity for stakeholders to comment. OSHA has held several meetings with affected stakeholders, namely, the Southland Corporation, the National Association of Convenience Stores (NACS), the Convenience Store Safety Committee, and the Inter-Union Workplace Physical Assault Coalition during the past 24 months. These groups, among others, have come in and discussed the topic of workplace violence and provided OSHA with information that was utilized directly or indirectly in the preparation of these draft guidelines.
We released the draft on the internet because we have found, based upon the experience we recently had with the guidelines for health care and social service workers, that the internet is an effective method for dissemination of the guidelines to a large audience for comment. In a climate of limited resources, it is more cost-effective than doing large mailings. We did, however, mail the draft guidelines out to at least 50 stakeholders for comment within days of their appearance on the internet, and are prepared to provide more, upon request.
With respect to the NIOSH study that you have mentioned, we are working very closely with NIOSH to assure that the final guidelines reflect the very latest and best information available on this topic. A NIOSH staff person has been assigned to work with us on this project since its inception. It is not expected that this study will have a material impact on the draft guidelines, and since the study is still under review, we did not want to hold up the process of producing the draft guidelines by waiting for its release.
Finally, you expressed concern about the enforcement use of the draft guidelines. The release of these draft guidelines or of the final guidelines will not result in any 5(a)(1) citations. The guidelines are for educational and technical assistance purposes only. Citations will be issued under extreme circumstances such as when an employer has a known history of the hazard of workplace violence and has taken no measures to abate a recognized hazard for which feasible abatement methods are available.
OSHA is preparing guidelines in response to numerous requests from stakeholders for some assistance in protecting employees from this emerging hazard and in understanding which approaches to the problem OSHA will recognize as a good faith effort to fulfill the employer's statutory obligations. Workplace violence has become the second cause of death in the workplace for all workers and the number one cause of workplace fatality for women. We are responding to a need to address this hazard which is clearly a safety and health issue in the workplace.
Thank you for your concerns about worker safety and health. If you have further concerns or questions, we will be happy to address them.
Joseph A. Dear
April 22, 1995
The Honorable Joseph A. Dear
Assistant Secretary of OSHA
U.S. Department of Labor
200 Constitution Avenue, NW
Washington, DC 20210
Dear Mr. Assistant Secretary:
It has come to our attention that OSHA has recently released draft "Guidelines for Workplace Violence Prevention Programs for Night Retail Establishments," at least on the Internet. We write to express our concern, both about the draft guidelines themselves and about the process that OSHA has used in releasing them.
It is our understanding that these guidelines have been developed and released prior to any opportunity for the affected employers to comment. It seems inconsistent with your own stated intentions for the "stakeholder" process for these employers to be shut out of the process. These employers work constantly to reduce workplace violence and provide a safe workplace for their employees. Their experience and knowledge should be an essential part of developing effective guidelines.
We are also concerned that the draft guidelines have been released without the benefit of a final version of an analysis performed by and still under review by the National Institute for Occupational Safety and Health (NIOSH). Although that study is referenced in the guidelines, the report itself has not yet been made available to the public. As a result, it is impossible for interested parties to know whether the NIOSH study actually supports the draft guidelines.
Guidelines that fail to take the best available information and distill that information into effective guidance can be an economic waste for employers and, more importantly, can provide a false sense of security for employees. Flawed guidelines can result in retail establishments choosing less effective safety precautions.
We are also concerned about the enforcement use of these draft guidelines. While the guidelines purport to be only voluntary, the use of the guidelines under the section 5(a)(1) "general duty clause" is also suggested. At this point we have strong reservations about OSHA's role in the entire area of dealing with third party criminal behavior. The failure of OSHA to discuss the draft guidelines with "stakeholders" prior to publication and the failure to release the NIOSH study adds to our concerns with OSHA's involvement in this area.
We believe that OSHA should, first, withhold further publication of the draft guidelines until the guidelines are discussed with the appropriate stakeholders; second, release the NIOSH study and any other studies relied upon by OSHA in the draft guidelines so that we and others can see whether they in fact support the draft guidelines; third, specifically state that the draft guidelines will not be used for enforcement purposes.
Please let us know your response to these three requests. Thank you for your prompt attention to this matter.
Member of Congress
Member of Congress