On May 22, California’s Division of Occupational Safety and Health (DOSH, but generally referred to as “Cal/OSHA”) issued its latest revised discussion draft of a regulatory standard mandating workplace violence prevention (WVP) steps for employers in “general industry” (potential 8 CCR 3343). This draft revives an effort that began in 2017, when the California Occupational Safety and Health Standards Board (OSHSB) responded to a schoolteacher’s petition that the state enact a WVP standard for educational settings by agreeing to consider one for all settings not covered by its standard for WVP in healthcare settings (which I wrote about HERE). The remainder of this note discusses the latest draft.
Who would be subject to these WVP requirements?
Cal/OSHA is proposing to apply these requirements to all employers in California, except the following:
health care employers subject to the specialized WVP requirements noted above
other employers that choose to meet the healthcare sector requirements
facilities of the California Department of Corrections and Rehabilitation (which must consider WVP issues in their Injury and Illness Prevention Programs (IIPPs; see below)
law enforcement agencies that comply with WVP requirements from the California Commission on Peace Officer Safety and Training (POST)
How is Cal/OSHA defining WVP and related terms?
The new draft presents fairly standard definitions of workplace violence:
“’Workplace violence’ means any 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:
"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.
"Type 2 violence" means workplace violence directed at employees by customers, clients, patients, students, inmates, or visitors.
"Type 3 violence" means workplace violence against an employee by a present or former employee, supervisor, or manager.
"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.
EXCEPTION: The term workplace violence does not include lawful acts of self-defense or defense of others, or self-inflicted harm that does involve violence or threats of violence to others.”
Since this definition includes “threat of violence” Cal/OSHA also defines that term as follows:
“’Threat of violence’ means a statement or conduct that causes a person to fear for their safety because there is a reasonable possibility the person might be injured, and that serves no legitimate purpose.
Note that these definitions include actual violence as well as threats that others may find credible, and violence perpetrated in a workplace by co-workers and others.
What would employers be required to do?
The discussion draft includes significant requirements for employers:
Workplace Violence Prevention Plan (Plan). Each employer must “establish, implement, and maintain an effective [Plan].” The Plan must be in writing, and available to employees and their authorized representatives at all times. The employer can incorporate the Plan into its general-purpose Injury and Illness Prevention Program (IIPP – which I wrote about HERE). Each Plan must include all of the following elements:
(1) Names or job titles of persons responsible for implementing the Plan.
(2) Effective procedures for active involvement of employees and their representatives in Plan design and implementation.
(3) Methods to coordinate implementation with other employers (when applicable).
(4) Effective procedures for the employer to accept and respond to reports of workplace violence, and to prohibit retaliation against a reporting employee.
(5) Procedures to ensure that supervisory and non-supervisory employees comply with the Plan.
(6) Procedures to communicate with employees regarding workplace violence matters including:
(A) How an employee can report a violent incident, threat, or other workplace violence concern without fear of reprisal;
(B) How employee concerns will be investigated, and how employees will be informed of the results of the investigation and any corrective actions to be taken;
(7) Procedures to alert employees and respond to workplace violence emergencies, including active shooter threats;
(8) Procedures to develop and provide required training (see below).
(9) Procedures to identify workplace violence hazards, including periodic inspections to identify unsafe conditions and work practices; and procedures to evaluate identified workplace violence hazards.
(10) Procedures for timely correction of identified hazards.
(11) Procedures for post-incident response and investigation.
(12) Procedures to review the effectiveness of the Plan periodically and after any workplace violence incident that results in an injury, and to revise the Plan as needed.
Violent incident Log. If a workplace has had a workplace violence incident within the past 5 years, the employer must maintain a log of incidents with required information (similar to general injury and illness (I&I) log requirements, which I’ve written about several times, most recently HERE)
Training. The employer is to provide effective training, appropriate to the employees and including:
(1) general awareness training that includes: the employer’s Plan, how to obtain a copy, how to participate in development and implementation of the employer’s Plan, the definitions and requirements in Cal/OSHA’s WVP standard, and how to report workplace violence incidents or concerns to the employer without fear of reprisal.
(2) In addition, employers who had a workplace violence incident within the previous 5 years shall provide the following training to employees:
(A) Workplace violence hazards specific to the employees’ jobs, corrective measures the employer has implemented, an explanation of the Plan, how to seek assistance to prevent or respond to violence, and strategies to avoid physical harm.
(B) The violent incident log, and how to obtain copies of required incident-related records.
(3) Additional training shall be provided when a new or previously unrecognized workplace violence hazard is identified.
Required record keeping. Employers must retain for at least one year: records of training; and of workplace violence hazard identification, evaluation, and correction. Violent incident logs must be retained for at least 5 years. These records must be available upon request to employees, and to Cal/OSHA.
What happens next?
Cal/OSHA has requested comments on this draft by July 18, 2022. I have not found information stating whether the agency now intends to complete this effort promptly, after several years of inaction.
Does the organization operate any activities or facilities in California that will be subject to Cal/OSHA’s WVP requirements as presently proposed?
- If so, does it maintain a WVP plan (perhaps as part of its IIPP)?
Whether or not the organization is subject to these requirements, does it:
- Have a plan for workplace violence prevention, including procedures to ensure appropriate assessment, prevention and response activities?
- Have established communication and cooperation procedures with local emergency responders and law enforcement?
- Record incidents of workplace violence (i.e., in its I&I log)?
- Procedures and method(s) for reporting incidents?
- Provide employees training in workplace violence hazards, prevention and responses?
Has the organization ever had a workplace violence incident at one of its operations?
- If so, how has the organization responded?
Where Can I Go For More Information?
About the Author
Jon Elliott is President of Touchstone Environmental and has been a major contributor to STP’s product range for over 30 years.
Mr. Elliott has a diverse educational background. In addition to his Juris Doctor (University of California, Boalt Hall School of Law, 1981), he holds a Master of Public Policy (Goldman School of Public Policy [GSPP], UC Berkeley, 1980), and a Bachelor of Science in Mechanical Engineering (Princeton University, 1977).
Mr. Elliott is active in professional and community organizations. In addition, he is a past chairman of the Board of Directors of the GSPP Alumni Association, and past member of the Executive Committee of the State Bar of California's Environmental Law Section (including past chair of its Legislative Committee).
You may contact Mr. Elliott directly at: firstname.lastname@example.org