Nixon Peabody LLP

  • People
  • Capabilities
  • Insights
  • About

Trending Topics

    • People
    • Capabilities
    • Insights
    • About
    • Locations
    • Events
    • Careers
    • Alumni

    Practices

    View All

    • Affordable Housing
    • Community Development Finance
    • Corporate & Finance
    • Cybersecurity & Privacy
    • Environmental
    • Franchising & Distribution
    • Government Investigations & White Collar Defense
    • Healthcare
    • Intellectual Property
    • International Services
    • Labor & Employment
    • Litigation
    • Private Wealth & Advisory
    • Project Finance
    • Public Finance
    • Real Estate
    • Regulatory & Government Relations

    Industries

    View All

    • Cannabis
    • Consumer
    • Energy
    • Entertainment
    • Financial Services
    • Healthcare
    • Higher Education
    • Infrastructure
    • Manufacturing
    • Non Profit
    • Real Estate
    • Technology

    Value-Added Services

    View All

    • Alternative Fee Arrangements

      Developing innovative pricing structures and alternative fee agreement models that deliver additional value for our clients.

    • Continuing Education

      Advancing professional knowledge and offering credits for attorneys, staff and other professionals.

    • Crisis Advisory

      Helping clients respond correctly when a crisis occurs.

    • DEI Strategic Services

      Providing our clients with legal, strategic, and practical advice to make transformational changes in their organizations.

    • eDiscovery

      Leveraging law and technology to deliver sound solutions.

    • Global Services

      Delivering seamless service through partnerships across the globe.

    • Innovation

      Leveraging leading-edge technology to guide change and create seamless, collaborative experiences for clients and attorneys.

    • IPED

      Industry-leading conferences focused on affordable housing, tax credits, and more.

    • Legal Project Management

      Providing actionable information to support strategic decision-making.

    • Legally Green

      Teaming with clients to advance sustainable projects, mitigate the effects of climate change, and protect our planet.

    • Nixon Peabody Trust Company

      Offering a range of investment management and fiduciary services.

    • NP Capital Connector

      Bringing together companies and investors for tomorrow’s new deals.

    • NP Second Opinion

      Offering fresh insights on cases that are delayed, over budget, or off-target from the desired resolution.

    • NP Trial

      Courtroom-ready lawyers who can resolve disputes early on clients’ terms or prevail at trial before a judge or jury.

    • Social Impact

      Creating positive impact in our communities through increasing equity, access, and opportunity.

    1. Home
    2. Insights
    3. Alerts
    4. Cal/OSHA releases revised Workplace Violence Prevention Standard draft for general industryAlerts

    Alert / OSHA Alert

    Cal/OSHA releases revised Workplace Violence Prevention Standard draft for general industry

    May 31, 2022

    Share

    By Rachel Conn

    After revisions to the draft have been stalled for years, Cal/OSHA recently issued a revised draft of its Workplace Violence Prevention Standard.

    What’s the Impact?

    • The draft Standard outlines extensive requirements for workplace violence prevention plans, trainings, violence incident logs, and recordkeeping
    • The draft Standard is not yet finalized, but employers can prepare now by developing workplace violence prevention programs

    Recently, the California Division of Occupational Safety and Health (Cal/OSHA) issued a revised version of its Workplace Violence Prevention Standard--8 CCR § 3343 (Standard). While the prior draft of the proposed Standard was released in October 2018, revisions were sidelined due in part to the COVID-19 pandemic.

    With limited exceptions, the Standard will apply to all California employers (a main exception includes those employers already required to comply with 8 CCR § 3342--Violence Prevention in Health Care).

    Why is workplace violence an area of concern?

    According to Federal Occupational Safety and Health Administration (Fed/OSHA), “[a]cts of violence and other injuries are currently the third-leading cause of fatal occupational injuries in the United States.”

    What is workplace violence?

    The draft Standard defines workplace violence as:

    …[A]ny act of violence or threat of violence that occurs in a place of employment. Workplace violence includes the following:

     

    1. (A)The threat or use of physical force against an employee that results in, or has a high likelihood of resulting in, injury, psychological trauma, or stress, regardless of whether the employee sustains an injury;
    2. (B) An incident involving the threat or use of a firearm or other dangerous weapon, including the use of common objects as weapons, regardless of whether the employee sustains an injury;
    3. (C) Four workplace violence types:
      1. 1. “Type 1 violence” means workplace violence committed by a person who has no legitimate business at the worksite[] and includes violent acts by anyone who enters the workplace with the intent to commit a crime.
      2. 2. “Type 2 violence” means workplace violence directed at employees by customers, clients, patients, students, inmates, or visitors.
      3. 3. “Type 3 violence” means workplace violence against an employee by a present or former employee, supervisor, or manager.
      4. 4. “Type 4 violence” means workplace violence committed in the workplace by someone who does not work there[] but has or is known to have had a personal relationship with an employee.

    (emphasis added)

    The draft Standard exempts from the definition “lawful acts of self-defense or defense of others, or self-inflicted harm that does involve violence or threats of violence to others.”

    Of note, workplace violence not only includes acts of violence but threats and is expanded beyond physical injuries to also include psychological trauma or stress. Further, workplace violence is not limited to employee-on-employee violence but also includes third-party criminal acts and domestic or intimate partner violence that may spill into the workplace.

    What are employer requirements under the proposed draft Standard?

    Workplace Violence Prevention Plan

    The Standard would require an employer to establish, implement, and maintain an effective workplace violence prevention plan (Plan). Under the current draft Standard, the Plan requires twelve elements, including:

    • Person responsible for implementing the Plan<
    • Effective procedures for:
      • Coordinating with other employers
      • Obtaining active involvement from employees and authorized employee representatives
      • Accepting and responding to reports of workplace violence
      • Ensuring compliance with the Plan
      • Communicating with employees
      • Responding to workplace violence emergencies
      • Employee training on Plan requirements and procedures (see more below)
      • Identifying workplace violence hazards, including scheduled periodic inspections to identify unsafe conditions and work practices, and procedures to evaluate workplace violence hazards identified through periodic inspections, employee concerns, workplace violence incidents, and whenever the employer is made aware of a new or previously unrecognized hazard
      • Maintaining a Violent Incident Log (see more below)
      • Correcting workplace violence hazards in a timely manner
      • Conducting post-incident response and investigation
      • Reviewing and updating the Plan review periodically

    Violent Incident Log

    Employers will be required to record information in a Violent Incident Log for every workplace violence incident. However, a new revision to the draft Standard now allows employers who have not had workplace violence incidents in the past five years to be exempt from keeping a log.

    Training

    Cal/OSHA made the most significant revisions from the 2018 draft in the new draft Standard’s training provisions. The latest draft Standard requires:

    • Employers provide employees with general awareness training on workplace violence that includes:
      • The employer’s Plan and how to obtain it
      • How to participate in the development and implementation of the Plan
      • The definitions and requirements in regulation
      • How to report workplace violence incidents or concerns to the employer without fear of reprisal
    • Additional training when a new or previously unrecognized workplace violence hazard has been identified
    • The new draft Standard also includes additional training requirements for employers who have had a workplace violence incident(s) in the past five years

    Recordkeeping

    Recordkeeping will be required for records of:

    • Workplace violence hazard identification, evaluation, and correction
    • Trainings
    • Violent injury logs
    • Incident investigations

    The Standard also requires employers to make these records available upon request to Cal/OSHA, employees and their representatives

    What should employers do now?

    While the draft Standard is not yet finalized, employers should familiarize themselves with the draft and begin to implement their own workplace violence prevention procedures, training, and response in preparation. Employers should also evaluate whether workplace violence is a current hazard in their workplace. If so, Cal/OSHA can currently cite employers under the Injury and Illness Prevention Plan (8 CCR § 3203) for not taking steps to correct the hazard(s).

    Employers interested in providing feedback to Cal/OSHA on the current draft can also submit written comments to Cal/OSHA by July 18, 2022.

    Other considerations for employers?

    While compliance with the final adopted Standard is important, it is just the start of what employers should be considering when designing their workplace violence prevention program. Like all occupational safety and health regulations, employers need to consider any overlap with other employment laws when developing their plans, including:

    • Workers’ compensation laws, including potential exemptions to the exclusivity bar
    • Privacy laws
    • Fair Employment and Housing Act (FEHA), Americans with Disabilities Act (ADA), and related state laws and potential discrimination issues
    • Premises liability
    • Negligent hire, supervision, retention, and vicarious liability
    • Accommodation for domestic violence victims
    • Privilege and confidentiality
    • Temporary restraining orders (TROs) and injunctions
    • Use of technology and social media policies
    • Employee search policies (physical & electronic)

    How can I learn more?

    To learn more about workplace violence prevention, program development, and response, including Cal/OSHA’s new draft, you can watch a recording of Nixon Peabody’s recent virtual presentation, “Implementing Strategies for Workplace Violence Prevention & Response.”

    Labor & Employment

    Locations

    Los AngelesSan Francisco

    Practices

    Occupational Safety & Health (OSHA)Labor & EmploymentLabor & Employment LitigationCalifornia Labor & EmploymentWorkplace Violence Prevention & ResponseWorkplace: Policies, Procedures & Training

    Insights And Happenings

    • Alert

      Employer guide to preparing for emergencies, natural disasters, and catastrophic incidents

      Jan 24, 2023
    • Alert

      Monkeypox: What employers need to know

      Sep 1, 2022
    • Alert

      EEOC provides new insight regarding workplace COVID-19 testing requirements and data collection practices

      July 19, 2022

    Subscribe to stay informed of the latest legal news, alerts, and business trends.Subscribe

    • People
    • Capabilities
    • Insights
    • About
    • Locations
    • Events
    • Careers
    • Alumni
    • © 2023 Nixon Peabody. All rights reserved
    • Privacy Policy
    • Terms of Use
    • Statement of Client Rights
    • Supplier Diversity Program
    • Nixon Peabody International LLC
    • PAL