New Guidelines Released on Workplace Violence Prevention

Blog by Sahara Pines, Esq., Partner at Fox Rothschild, LLP

Nearly all employers in the state of California must prepare a Workplace Violence Prevention Plan (“WVPP” or “Plan”) by July 1, 2024 and Cal/OSHA just published the highly anticipated model Workplace Violence Prevention Plan as well as an employer fact sheet.  The model Workplace Violence Prevention Plan published by Cal/OSHA includes all the required information necessary for compliance but it should be tailored and customized to fit the needs of your specific industry and workplace.  The model Plan is intended to” help employers develop a separate, stand-alone Plan. It was written for a broad spectrum of employers, and it may not match your establishment’s exact needs. However, it provides the essential framework to identify, evaluate, and control workplace violence hazards.”  Here’s what you need to know.

Covered Employers

California Senate Bill 553 (SB 553), which was signed into law on September 30, 2023 amended Labor Code section 6401.7 to require employers to develop and implement a WVPP in accordance with newly codified Labor Code section 6401.9, which sets out the requirements for the Plan. The requirement for a WVPP applies to all employers and employees in California except: employers already covered by Cal/OSHA’s Violence Prevention in Health Care standard, employees who telework from a location of their choosing that’s outside the control of the employer, locations not open to the public where fewer than 10 employees work at a given time, and Department of Corrections and Rehabilitation and law enforcement agencies.

Definition of “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. “Threat of violence” means any verbal or written statement, including, but not limited to, texts, electronic messages, social media messages, or other online posts, or any behavioral or physical conduct, that conveys an intent, or that is reasonably perceived to convey an intent, to cause physical harm or to place someone in fear of physical harm, and that serves no legitimate purpose. This means there is no “reasonable person” test and the definition is subjective.  A comment that seems harmless to some might be considered workplace violence based on another employee’s perception.  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, inmates 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.

Plan Requirements

The Plan must be in writing and easily accessible to all employees. It can be a stand-alone living document or a section within an existing injury and illness prevention plan (IIPP). The employer can designate a WVPP administrator responsible for implementing the provisions of the Plan. However, if there are multiple people responsible for the Plan, clearly describe their roles. The Plan must include:

• The names of persons responsible for its implementation. Note that all managers and supervisors are responsible for implementing and maintaining the WVPP in their work areas and for answering employee questions about the WVPP.
• Effective procedures for employee involvement in developing and implementing the Plan. Guidance from Cal/OSHA suggests that management have monthly safety meetings with employees and their representatives to discuss identification of workplace violence related concerns/hazards, evaluate those hazards and/or concerns, and how to correct them. These meetings could involve brainstorming sessions, discussions of recent incidents, and reviews of safety procedures.
• Methods to coordinate implementation of the WVPP with other employers, when applicable.
• Procedures for employers to handle and respond to reports of workplace violence while ensuring no retaliation against the reporting employee.
• Procedures to ensure compliance from employees, including supervisors.
• Procedures to communicate with employees regarding workplace violence matters i.e., how to report violent incidents, threats or concerns and how they will be investigated.
• Reporting Procedure: Describe if the Company is designating a WVPP administrator responsible for implementing the provisions of the plan. Possibilities for reporting may include supervisors, HR, or through an anonymous hotline. The hotline could be a dedicated phone number or an online form, provided it is effectively monitored.
• Emergency response protocols: Determine whether the Company will use an alarm system and/or PA announcements to alert employees of emergencies. Specify how employees will obtain help from staff, security personnel, or law enforcement, if needed. Include contact information for response staff and local law enforcement and post in common areas then list posted locations.
• Identify and evaluate the workplace violence hazards. The Plan should include procedures to identify and evaluate workplace violence hazards that include inspections with the following frequency: When the Plan is first set up; periodically scheduled; after violent incidents; and whenever a new hazard becomes known. Identify who will conduct periodic inspections and the name of the contact who will correct workplace hazards that are identified.
• Post incident response and investigate. Employers should detail what steps WVPP administrator or their designee will implement the following post-incident procedures i.e., visit the scene, interview involved parties, review security cameras, obtain law enforcement reports.
• Review Plan effectiveness annually, when deficiency is apparent, or after a workplace violence incident.

Interactive Training Requirements

SB 553 also requires employee training. Employers are required to provide employee with initial training when the WVPP is first established, annually and whenever a new or previously unrecognized workplace violence hazard has been identified and when changes are made to the Plan. Training needs to cover, among other topics, the WVPP, how employees can obtain a free copy of the Plan, and how to report workplace violence hazards and incidents. The material must be appropriate in content and vocabulary to the educational level, literacy, and language of employees. Significantly, training must provide an opportunity for interactive questions and answers with a person knowledgeable about the employer’s plan, complicating asynchronous web-based training modules.

Log Requirements

Specific information must go into the log even if an incident did not result in injury. The log must include information on every workplace violence incident, based on employee statements, witness statements, and investigation findings. A sample log is included in Cal/OSHA’s model WVPP and includes information required by Labor Code section 6401.9(d). Note that “Workplace Violence Type” and “Type of Incident” have separate requirements. For this part of the log, “Type of Incident” specifically refers to the nature or characteristics of the incident being logged (i.e., physical attack with a weapon, physical attack without a weapon, threat, sexual assault, etc.) It does not refer to the type of workplace violence. Employers must exclude personal identifying information that would identify any person involved in a violent incident such as the person’s name, address, electronic mail address, telephone number, social security number, or other information that, alone or in combination with other publicly available information, reveals the person’s identity. Notably, existing employer records on workplace violence may not suffice.

Recording and Reporting Requirements

Employers are required to record every workplace violence incident in a violent incident log.  Be sure to include the date, time and location of the incident along with a detailed description of the incident, who committed the violence, the type of violence, consequences of the incident (was security or law enforcement contacted). The Plan must be in writing and easily accessible to employees, authorized employee representatives, and Cal/OSHA representatives. Records of workplace violence hazard identification, evaluation, and correction must be created and maintained for a minimum of five years. Training records must be created and maintained for a minimum of one year. Violent incident logs must be maintained for a minimum of five years. Records of workplace violence incident investigations under must be maintained for a minimum of five years.

Key Takeaways

Obtain the active involvement of employees and their authorized employee representatives in developing and implementing the Plan. Be collaborative so that employees can participate in designing and implementing training programs most relevant to their workplace. For example, an employee might suggest a new training scenario based on a recent incident. List and explain procedures for ensuring employee compliance with the WVPP from supervisory and nonsupervisory employees. Ensure a strict non-retaliation policy is in place, and any instances of retaliation are dealt with swiftly and decisively. Take the time now to draft a highly customized Plan, a compliant training program, and educate supervisors on the enhanced record-keeping requirements. Please reach out to our Fox Rothschild California Labor & Employment attorneys who can assist.

Visit https://www.foxrothschild.com/ to reach Sahara Pines or Nancy Yaffe – Fabulous employment attorneys ready to help you!

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