Cal/OSHA's stunning proposed regulation on workplace violence in health care facilities

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.

Scope of the proposed standard

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:

  • Outpatient medical offices and clinics
  • Home health care and home-based hospice
  • Paramedic and emergency medical services
  • Field operations, such as mobile clinics and dispensing operations, medical outreach services and other off-site operations
  • Drug treatment programs
  • “Ancillary health care operations” (examples of ancillary health care operations provided by the Board include “retail clinics, school nurse operations, and workplace clinics”).

Proposed 8 CCR 3342(a) and (b).

Problems with the required workplace violence prevention plan

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:

  • “Effective procedures” for the “active participation” of employees in developing, implementing and reviewing the plan and in identifying, evaluating and correcting workplace violence hazards. It is not at all clear what happens if employees refuse to do so.
  • The involvement of security personnel who are either employees or representatives of employees of a third-party vendor providing security services to the employer. This seems to imply that all covered entities must have security personnel (many covered employers do not) since otherwise this requirement could not be met. Nor is it at all clear who a “representative” of such third-party employees would be.
  • Procedures for “how employees will document and communicate to other employees and between shifts and units” with regard to the potential for workplace violence. This may imply that an employer cannot instead take on the responsibility for such communication.
  • A requirement that employees and their representatives be allowed to participate in developing and delivering the training. Many employers with collective bargaining relationships will immediately recognize how difficult, if not impossible, this mandate will be. For those in non-union environments, who will qualify as an employee “representative?”
  • Procedures to identify and evaluate a lengthy list of environmental risk factors with regard to specific issues including, but not limited to, the presence of “furnishings or any objects that can be used as weapons” in areas where patient contact takes place. As a service to our readers in determining what might need to be included in this incredibly broad phrase beyond medical instruments, tools and equipment, the authors note that as we write this alert, we have a number of items either near or on our desks that could be improvised into weapons, including: pens, pencils, a stapler, books, cell phones, laptops, an ipad, charging cords, keys, a hot cup of coffee, framed pictures, chairs, paper clips, a tape dispenser, a staple remover, two coat hangers, a neck tie, a scarf, a bicycle helmet, an extra pair of shoes with scary heels, a plastic bag, a magazine (we recall James Bond rolling one up and using it to knock out multiple bad guys in a movie), a potted plant and a small pumpkin. There was also a jumbo-sized bottle of aspirin, but that was only out because we are writing this particular alert so we decided it did not count. By the way, “ancillary health care operations” are expressly required to identify and evaluate such things, not just in the area where the health care operation is located, but also “in other areas of the host establishment.” Proposed 8 CCR 3342(c)(8)(E).
  • Procedures to identify “patient-specific risk factors and assess visitors” using “[a]ssessment tools, decision trees, algorithms, or other effective means…”
  • The use of engineering and work practice controls to eliminate or minimize exposure to workplace violence hazards to the extent feasible.
  • “Ensuring that sufficient numbers of staff are trained and available to prevent and immediately respond to workplace violence incidents during each shift. A staff person is not considered to be available if other assignments prevent the person from immediately responding…” Does this mean they can have no other important duties or any duties at all outside the immediate area? Hospitals will immediately recognize that increased staffing demands are something that unions raise regularly in collective bargaining (where such discussions belong) and have in recent years attempted to obtain through legislative or regulatory fiat. And smaller facilities will have yet other problems in complying with this demand.
  • “Providing line of sight or other immediate communication in all areas where patients or members of the public may be present. This may include removal of sight barriers.”
  • “Configuring facility spaces …so that employee access to doors and alarm systems cannot be impeded by persons or obstacles.” Full compliance at all times with this provision appears impossible. As one example, it will almost always be possible for a person or persons intent on blocking access to do so at some time or in some way.  
  • “Removing, fastening, or controlling furnishings and other objects that may be used as improvised weapons” in areas where patients identified as having a potential workplace violence can be reasonably anticipated.
  • “Maintaining sufficient staffing, including security personnel” who can maintain order and respond to workplace violence. What would be deemed “sufficient?”
  • “Installing an alarm system or other effective means” to summon security and other assistance.
  • Assigning “minimum numbers of staff” to reduce patient violence. In addition to our other concerns about staffing mandates, what would be deemed an acceptable “minimum?”

And the list actually goes on. Please see proposed 8 CCR 3342(c).

Other requirements

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.

Next steps for health care employers

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.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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