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:
- (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;
- (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;
- (C) Four workplace violence types:
- 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. “Type 2 violence” means workplace violence directed at employees by customers, clients, patients, students, inmates, or visitors.
- 3. “Type 3 violence” means workplace violence against an employee by a present or former employee, supervisor, or manager.
- 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.
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.
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 will be required for records of:
- Workplace violence hazard identification, evaluation, and correction
- 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.”