California Workplace Violence Training Mandate

As many of our California members are likely aware, a law passed last year requires employers to develop a written plan and implement interactive training to respond to cases of workplace violence.  ASA’s Sacramento representation, California Strategies, provided an excellent summary by Akerman LLP:
 

A new California law taking place on workplace violence requires employers to develop and implement written plans and interactive training to prevent and respond to on-the-job threats of violence by July 1, 2024. Among other things, Senate Bill 553 requires adopting an “effective” written workplace violence prevention plan, either as a stand-alone document or as part of a general injury and illness prevention program.
 

In many respects, SB 553 is a broader enactment of a regulatory standard that has applied to healthcare employers in California since 2017. SB 553 also directs the California Division of Occupational Safety and Health (Cal/OSHA) — the author of the healthcare regulations — to adopt and enforce new workplace violence prevention standards no later than December 31, 2025. But even if Cal/OSHA does not meet that deadline, it is empowered to begin enforcing the new law when its requirements become effective in July. The legislation imposes extensive new requirements on employers; thus, it is time now for employers to work toward compliance.
 

Who Qualifies as a “Covered” Employer?
 

The workplace violence prevention plan requirement is the first of its kind in the United States to apply to employers in all industries, and it applies to nearly all employers, except:
 

• Employers already covered by Cal/OSHA’s violence prevention in health care standard

• Employees who telework from a location of their choosing that is outside the control of the employer

• Locations not open to the public where fewer than 10 employees work at a given time

• Department of Corrections and Rehabilitation and law enforcement agencies

What Constitutes “Workplace Violence”?
 

SB 553 broadly defines “workplace violence” as “any act of violence or threat of violence that occurs in a place of employment.” The definition includes, for example, verbal and written threats of violence and incidents involving the use of a firearm or other dangerous weapon (including the use of common objects as weapons), regardless of whether an employee sustains an injury. SB 553 excludes, however, lawful acts of self-defense or defense of others.
 

The law defines four specific types of workplace violence:
 

• Type 1 violence: workplace violence committed by a person who has no legitimate business at the worksite, including violent acts by anyone who enters the workplace or approaches workers with the intent to commit a crime.

• Type 2 violence: workplace violence directed at employees by customers, clients, patients, students, or visitors.

• Type 3 violence: workplace violence against an employee by a present or former employee, supervisor, or manager

• Type 4 violence: violence committed in the workplace by a person who does not work there but has or is known to have had a personal relationship with an employee.

Because the definition of workplace violence is quite broad, the law may sweep in conduct that some employers may see as hyperbolic, trivial, or not serious. Employers nonetheless should take concerns seriously and investigate all threats of workplace violence in accordance with their plans, and actively communicate with employees about what is and what is not appropriate workplace conduct.
 

Workplace Violence Prevention Plan Requirements
 

Employers should prepare their workplace violence prevention plan as early as possible. The plan must be in writing and easily accessible to employees. The plan must include the following:
 

• The names or job titles of individuals responsible for developing and implementing the plan.

• Effective procedures to accept and respond to reports of workplace violence, and to prohibit retaliation against an employee who reports an incident.

• Effective procedures to communicate with employees about: (1) how to report violent incidents, threats, or workplace violence concerns to employer or law enforcement; and (2) how concerns will be investigated, and results communicated.

• Effective procedures to respond to actual or potential workplace violence emergencies.

• Procedures to review the workplace violence prevention plan annually, when deficiency is observed or becomes apparent, and after a workplace violence incident.

Training
 

SB 553 also requires employers to provide effective training to employees, appropriate to the educational level, literacy, and language of employees. Employers must provide employees with initial training when the workplace violence prevention plan is first established and continue to conduct annual trainings thereafter. Training must cover the following:
 

• The employer’s workplace violence prevention plan and violent incident log, and how employees can obtain a copy.

• How to report workplace violence hazards and workplace violence incidents.

• Workplace violence hazards specific to the employees’ jobs.

• How to seek assistance to prevent or respond to violence, and strategies to avoid harm.

• An opportunity for interactive questions and answers with a person knowledgeable about the workplace violence prevention plan.

Employers must provide additional training when new or previously unrecognized workplace violence hazards are identified, or when there are changes to the plan. Notably, employers must retain training records for a least one year, and must include the dates the training occurred, contents or a summary of the training sessions, names and qualifications of persons conducting the training, and names and job titles of all persons attending the training sessions.
 

Recording and Reporting
 

Employers must maintain violent incident logs detailing workplace violence incidents. The violent incident log must be based on the information solicited from the employees who experienced the workplace violence, and include the following:
 

• Date, time, and location of the incident and information about the person completing the log (name, job title, date).

• Detailed description of the incident and classification of circumstances at the time of the incident (i.e. whether the employee was completing usual job duties, working in a poorly lit area, rushed, working alone, etc.).

• Classification of who committed the violence (i.e. client, customer, family, friend, stranger, supervisor, etc.).

• The violence type, including whether it was a physical attack or threat, whether weapons or other objects were involved, or whether it was a sexual assault.

• Consequences of the incident including whether security or law enforcement was contacted and whether actions were taken to protect employees from a continuing threat.

Of importance to note, employers must retain the log for five years and omit any element of personal identifying information sufficient to allow identification of any person involved in a violent incident. These records must be produced to Cal/OSHA upon request. Employees are entitled to view and copy the log within 15 calendar days of a request.
 

Are Model Workplace Prevention Plans Available?
 

SB 553 does not set forth specific mandates on what is considered an “effective” workplace violence prevention plan. Rather, employers must include procedures for responding to “actual or potential workplace violence emergencies.” As such, employers must develop a plan “specific to the hazards” of their workplace that is inclusive of more general considerations, such as assault and active shooter scenarios.
 

Cal/OSHA frequently creates model programs and using them has benefits — they are not difficult to use and will satisfy a Cal/OSHA inspection. Although Cal/OSHA has not yet confirmed whether they plan to publish a model workplace violence prevention plan, it is anticipated that they will.
 

Next Steps Covered Employers Must Take to Comply with the Law
 

In light of the significant requirements under SB 553, California employers should begin to take active steps to ensure compliance in advance of July 1, 2024. Cal/OSHA has already issued citations to some employers for workplace violence issues in 2023 based on an employer’s general duty to recognize hazards. Given these enforcement initiatives and the upcoming effective date, employers should start the process of implementing the required workplace violence prevention plan now.