Date: April 2020
Oleoresin capsicum (OC) spray, commonly known as pepper spray, is a tool used by law enforcement and individuals as both a violence deterrent and a weapon. With increased awareness of personal protection, there have been several inquiries to Minnesota Counties Intergovernmental Trust about policies and procedures for the use of pepper spray by non-law enforcement county employees such as social service staff.
The practice of carrying and potentially using pepper spray during the course of employment may create exposures for an employer related to workers’ compensation, general liability and property damage. MCIT recognizes that it is always prudent to develop a policy to address exposures when new practices are introduced; however, it is generally the individual member entity that is best equipped to write policies for the organization. It is not MCIT’s practice to provide a detailed review of members’ policies.
A quality review would include examination of other policies and practices and may involve collective bargaining issues, budget and work plan considerations unique to the entity. Nevertheless, MCIT provides some basic items for members to consider about this issue.
When adopting a position about the employee use of pepper spray, members should think about the following items.
- Pepper spray and other self-defense sprays are illegal in some jurisdictions.
- Any weapon or tool can be used against an employee. The merit of providing or increasing other situational awareness and self-defense training to be used with or instead of the discharge of pepper spray should be considered. Many incidents of violent behavior can be averted by recognizing escalating anger, intervening with options that defuse anger, and treating others in the same manner one would like to be treated. Public safety professionals emphasize prevention as the best solution to violence.
- Determine if a pepper spray use policy compliments or contradicts other policies that may require having law enforcement accompany a social service person to a potentially dangerous situation or a process to have law enforcement respond to an escalating situation.
- Develop a formal position and training as to when and where to use pepper spray, rather than just how to use the spray. Training should be performed by qualified instructors.
- Decide if the employer or employee will supply the pepper spray.
- Determine if the possession of the spray is mandatory or optional.
- Training should be mandatory if use is required and endorsed. Differential treatment of employees may expose the employer to allegations of discrimination.
- Safety Data Sheets (SDS) are required to be available for each brand of spray. Employees need to be trained on the use of the SDS, the dangers of the spray and the proper response to an exposure. Likewise the employer’s Employee Right to Know Program must be modified for the new potential chemical exposure.
- Determine how to check pepper sprays for expiration and how to dispose of old spray.
- Consideration should be given to storage locations for pepper spray. Pepper spray left in hot vehicles, for example, has been known to over-pressurize and explode, causing damage to the vehicle and potentially occupants.
- Develop an emergency response procedure for those who are sprayed or exposed to spray (staff, clients, etc.) and decide who will pay for costs associated with medical treatment and clean up if needed.
- Determine how the policy will be disseminated to employees and how policy acknowledgement receipts will be handled. Employees need to be trained about the policy on a regular basis. In the event the employer fails to adequately advise, educate or train staff about the policy, the member can be accused of being negligent if or when a claim arises, thereby limiting defenses and increasing the potential costs of the claim.
In some cases, courts have viewed the use of pepper spray by law enforcement as excessive force. In these cases, the crime is a minor infraction; the arrestee surrenders, is secured and is not acting violently; and there is no threat to the officer or anyone else. A similar argument could be made for use of pepper spray situations by non-law enforcement employees.
For additional information about this topic, members should contact their MCIT loss control consultant toll-free at 1.866.547.6516.