November 10, 2015
Employment Law Alert
Author(s): Jeffrey M. Tanenbaum
Cal/OSHA has released an extremely broad and detailed proposed rule addressing workplace violence in the health care industry. Cal/OSHA’s proposed rule, if adopted as currently written, will have a major impact on health care facilities throughout the state. Health care employers may want to respond during the public comment period, which closes on December 17, 2015.
In 2014, California adopted new Labor Code section 6401.8 requiring the California Occupational Safety and Health Standards Board (the Standards Board) to adopt a strict standard regulating workplace violence preparation and response by hospitals no later than July 1, 2016.
The Board has now responded to this mandate and to petitions seeking a workplace violence prevention standard by issuing a proposed standard (proposed 8 CCR 3342). Most unfortunately, and to the surprise of many, the Board has gone far beyond the scope of the Labor Code mandate. Workplace violence is an important and very serious issue. However, the Board’s proposed standard is riddled with problems.
The proposed standard will require all covered entities to develop and maintain: an extensive written workplace violence prevention plan containing 11 elements with multiple subparts, which must be reviewed annually; a detailed violent incident log, comprehensive training programs and various records. However, an ancillary health care operation may rely on a host entity for some of these requirements. Proposed 8 CCR 3342(a)(2)(A) and (C)and 3342 (c)(d)(e)(f) and (h). General acute care hospitals, acute psychiatric hospitals and special hospitals will also have additional extensive reporting requirements. Proposed 8 CCR (a)(2)(B).
The proposed standard is written in such a way that it will be inherently impossible for many health care employers to achieve full compliance, thus presumably giving license to the Division of Occupational Safety and Health (DOSH) to issue multiple citations against an employer whenever it wishes to do so. The proposed standard also appears to mandate increased staffing, something that is well beyond the scope of the Standards Board’s authority. The proposed standard also will apparently require security staff for all covered employers whether they need it or not. And it appears that DOSH may demand that covered employers engage in reconstruction of their facilities. The proposed standard also contains multiple program, recordkeeping and reporting requirements that will provide minimal or no benefit but which are unduly burdensome. The proposed standard is also likely to be incredibly expensive for many employers to implement.
The Standards Board is holding a public hearing on the proposed rule on December 17, 2015 in Sacramento, and a written comment period closing at 5:00 p.m. on December 17, 2015. It seems unlikely that any significant improvements will be made in the proposed standard without substantial input from employers who would be covered by it.
The proposed rule applies to virtually every type of health care facility in the state, no matter the size. It applies to any “health facility” defined as “any facility, place or building that is organized, maintained, and operated for the diagnosis, care, prevention or treatment of human illness, physical or mental…” in which a person is admitted for a twenty-four (24) hour stay or longer. And the proposed standard also covers all of the following facilities regardless of size and regardless of how long a patient may be in the facility:
Proposed 8 CCR 3342(a) and (b).
Implementing a written workplace violence prevention plan is an excellent idea. However, it does not need 11 separate elements with multiple subparts. The details required by the proposed standard are a combination of the unlawful, the impractical, the impossible and even the absurd. Among other things, the required written workplace violence prevention plan must include the following:
And the list actually goes on. Please see proposed 8 CCR 3342(c).
Violent Incident Log. All covered employers will have to record and maintain a violent incident log describing in detail each and every incident, post-incident response and workplace violence injury investigation.
Annual Review. The workplace violence prevention plan will have to undergo a detailed annual review. The annual review specifically requires covered employers to evaluate the sufficiency of staffing levels. Employers will also be required to obtain the active involvement of employees and their representatives in developing the training program and reviewing and revising it.
Training. All employees, including temporary employees, will have to go through detailed workplace violence prevention training.
California’s proposed rule is on the far leading edge of a nationwide trend in regulation of workplace violence in the health care industry. New York passed a law on this subject in 2006 that applied to public sector employers, and earlier this year it was extended to cover private nonprofit corporations that receive at least 50% of their funding from public-sector sources. Please see our previous alert for more information on the New York law.
The proposed rule is so onerous that any potentially covered health care employer should review the draft very carefully and begin thinking even now about how they may need to comply. Employers can view the text of the proposed rule here. More information on the proposed rule and the rulemaking process can be found here.
Potentially covered employers should quickly give serious consideration to making their concerns known by submitting written comments or participating in the public hearing or both.
And ultimately, should the proposed standard be implemented, health care employers may want to give serious consideration to a legal challenge.
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