By Glenn Demby, Esq.

"Typically, OSHA works with employers at sites they control. They usually know what the hazards are, and it's a matter of ensuring that workers are protected against these risks. Terrorism is a completely different case. The hazards are not endemic to the workplace. They are unexpected and may be unknown. . . . That changes the climate."

-- John L. Henshaw, Former OSHA Director, from a speech to the American Postal Workers Union, January 11, 2002

Terrorism isn't usually thought of as a workplace health and safety issue. But the terrorist threat permeates all aspects of our lives, including work. We're especially vulnerable when we're working -- whether we're actually in the workplace or commuting to and from it:

• Many of the victims who died in the recent attacks on the subways and buses of London met their fate while on their way to work.
• Most of the victims of the September 11 attacks were at work when they died, including the office workers at the World Trade Center and Pentagon and rescue workers trying to save them. (In addition, many of the passengers on the planes used in the attacks were business travellers.)
• Most of the victims of the October 2001 anthrax attacks were postal workers who became exposed while doing their jobs.

In short, terrorism is a work hazard -- albeit a non-traditional one. So it's appropriate and important to ask this question: What are the legal obligations of employers to protect employees against acts of terrorism? This series will attempt to answer that question.

OSHA & Terrorism

Employers have a duty to provide their employees a safe and healthy workplace. The primary source of this duty is the OSHA law. But, as former OSHA Secretary Henshaw suggests in the remarks cited above, the OSHA system wasn't designed with the terrorist threat in mind.

Terrorism represents a different kind of hazard. According to Henshaw, "this is not a matter of ignorance of the law or neglect of responsibilities or poor maintenance or malfunctioning equipment. It's a matter of malice aforethought on the part of persons unknown."

The attacks of September 11 have forced OSHA to confront this new threat. The challenge for OSHA is to figure out how to adapt a 20^th century regulatory scheme to 21^st century conditions.

OSHA's General Policy

OSHA has no specific standard or regulation covering terrorism in the workplace. One of the things OSHA could have done to deal with terrorism was create one. After all, creating new standards in response to new (or at least newly recognized) hazards is part of OSHA's mandate and past modus operandi. For example, in 200 OSHA tried to put into effect a new standard to prevent ergonomics injuries.

But OSHA has apparently rejected the option of creating a new standard on terrorism. There are currently no plans to create such a standard -- at least that I'm aware of.

OSHA's current policy seems to be to treat terrorism not as a matter of enforcement but voluntary cooperation with employers. The approach is to offer support, not to threaten citations. The first suggestion of this approach was OSHA's response to the anthrax crisis in October 2001. Here's how Henshaw described that effort:

"We find ourselves partners with both workers and employers in thwarting the goal of the terrorist -- to hurt and kill as many people as possible. Our role [in the anthrax crisis] has been one of sharing our expertise on sampling, decontamination methods and personal protective equipment. This is `safety and health assistance' in the best possible sense."

In furtherance of this policy, OSHA (and other government agencies such as the Department of Homeland Security and the Federal Emergency Management Association) has offered general advice and guidelines on dealing with terrorism. For example, OSHA has posted on its website a matrix that employers can use to assess the risks of various terrorist hazards and determine appropriate measures to protect employees.

The legal underpinnings of the current policy is the part of the OSHA statute that authorizes OSHA not only to enforce the safety laws but to advise employers and employees on effective means to prevent occupational injuries and illnesses. This is "the health and safety assistance" Henshaw refers to in the quote above.

The Enforcement Side

The fact that OSHA doesn't have a standard on terrorism and chooses to treat the issue as a matter of outreach and cooperation does not mean that employers have no legal obligations under the OSHA rules to protect their employees against terrorist-related hazards. On the contrary, some of the traditional OSHA standards and rules apply to terrorism. Next week, in Part 2 of this series, we'll look at two of them: The HAZWOPER Standard and the General Duty Clause.

The Canadian Perspective

Although it deals with American laws and institutions, the article above is generally relevant to Canadians. Provincial, territorial and federal OHS regulators in Canada have been confronting the same challenge as OSHA since September 11: Adapting an old regulatory scheme to a new kind of health and safety hazard.

The legal situation in Canada is also much the same as it is in the U.S. -- but on a provincial level. The facts:

• Each province's OHS law is designed to deal with traditional workplace hazards within the employer's control such as machine safety and hazardous chemicals;
• None of the provinces have specific rules on terrorism;
• There are parts of each province's OHS laws that apply to terrorist threats. For example, each province requires employers to provide some form of emergency planning and preparedness. Each province also has a General Duty clause.

This means that the analysis above and in next week's issue do relate to what's going on in Canada.

Editor's Note: Stop the World

The SafetyXChange World Tour of Safety that began in China last week, will take a temporary break and resume when our tour guide, Norm Keith, returns from vacation.

WHO WON?

Is Favoring a Consensual Sex Partner Harassment?

By David Duncan

The Situation: A prison warden is having an affair with three different women in the office. Two of the women who are not sexually involved with the warden sue for sexual harassment. They claim that the warden is giving preferential treatment to the women he's sexually involved with and generally creating a hostile work environment for everybody else. The warden denies the charges. Who won?

Answer: The two women claiming sexual harassment.

Explanation: On July 18, 2005, the California Supreme Court said that there was evidence suggesting that the women who slept with the boss were getting promoted and that the women who didn't were suffering various forms of mistreatment. "An isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair ordinarily would not constitute sexual harassment," the Court explained. But in this case the behavior was rampant. The warden's conduct created a workplace environment in which female employees were viewed as "sexual playthings" and it was widely believed that having an affair with the boss was the only way to get ahead.

[Miller v. Dept. of Corrections , No. S114097 (July 18, 2005)].

About Dave Duncan

Dave Duncan is an occupational safety/health writer at Bongarde Media Company, parent company to SafetyXChange. He was a newspaper reporter for 20 years before joining Bongarde in July 2000. Duncan's reporting interests include workplace bullying, violence in the workplace and other work-related issues affecting employees' emotional and physical health.

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