Last month, the California Division of Occupational Safety and Health (Cal/OSHA) released a revised discussion draft of a proposed regulation for workplace violence prevention (Proposed Rule). The Proposed Rule would expand existing health care industry workplace violence prevention requirements to all industries. The Proposed Rule includes new definitions with broad applicability and a “one-size-fits all” approach that mandates the same workplace violence prevention rules for essentially all employers statewide.
Currently, the Proposed Rule is awaiting public comments, which are due on the draft regulations by July 18, 2022. It is uncertain how quickly the rulemaking process will proceed after the July 18 deadline for public comment.
Workplace Violence Prevention Plan
If implemented, the Proposed Rule would require employers to “establish, implement, and maintain an effective workplace violence prevention plan” (Plan). The Plan must include effective procedures for accepting and responding to reports of workplace violence and for responding to workplace violence emergencies—including detail on how employees will be alerted of those incidents, plans for evacuating or sheltering in place, and methods for workers to get help from staff, security, or law enforcement. An employer’s Plan must include the following elements:
- Identification of person(s) responsible for implementing the Plan;
- Effective procedures to obtain active involvement of employees and authorized employee representatives (i.e., unions) in developing and implementing the Plan;
- Methods the employer will use to coordinate the implementation of the Plan with other employers;
- Effective procedures for accepting and responding to reports of workplace violence, and to prohibit retaliation;
- Procedures to ensure that supervisors and non-supervisors comply with the Plan;
- Procedures to communicate with employees regarding workplace violence matters;
- Procedures to respond to workplace violence emergencies;
- Procedures for employee training;
- Procedures to identify and correct workplace violence hazards;
- Procedures for post-incident response and investigation; and
- Procedures for periodically reviewing the effectiveness of the Plan, including after a workplace violence incident.
Violent Incident Log
The Proposed Rule also requires all employers to record incidents of violence in a Violent Incident Log. Whereas current regulations applicable to the health care industry exempt employers who have not had an incident in the past five years, the Proposed Rule does not provide for such an exemption. The Proposed Rule, instead, requires employers to record information in the log about “every workplace violence incident”—regardless of whether that incident resulted in an injury and regardless of when the last incident occurred. Among other details, the logs are required to include a description and consequences of each incident.
The Proposed Rule requires employers to develop and provide employee training on workplace violence. Specifically, it would require employers to “provide employees with general awareness training on workplace violence” that includes information on the employer’s Plan, accessibility to the Plan, participation opportunities, and how to report workplace violence incidents or concerns to the employer without fear of reprisal.”
Employers that had a workplace violence incident within the previous five years would be required to provide additional training to employees that includes:
- “Workplace violence hazards specific to the employees’ jobs,”
- Corrective measures that have been implemented,
- How employees can “seek assistance to prevent or respond to violence, and
- Strategies to avoid physical harm.”
Finally, the Proposed Rule requires employers to maintain records of workplace violence hazard identification, evaluation, and correction and training records for at least one year, while the Violent Incident Log and records of workplace violence incident investigations must be maintained for at least five years.
These records must be made available to Cal/OSHA upon request and to employees within 15 calendar days of a request.
Are similar state or federal OSHA rules being considered?
Currently, there are no specific OSHA standards for workplace violence at the federal level. However, Section 5(a)(1) of the Occupational Safety and Health Act of 1970—the General Duty Clause (GDC) —requires employers to provide a workplace free of conditions or activities that either the employer or industry recognizes as hazardous and that cause, or are likely to cause, death or serious physical harm to employees when there is a feasible method to abate the hazard. The Occupational Safety and Health Review Commission (Commission) has interpreted the GDC as requiring employers to protect employees from incidents of workplace violence. For example, in Sec’y of Labor v. Integra Health Management, Inc., the Commission held that a healthcare employer had a responsibility to manage the risk of workplace violence when an employee was stabbed by a patient with mental illness and a criminal record after the employer required the employee to work alone with the patient. The Commission reasoned that the employer failed to fulfill its responsibility under the GDC by exposing its employees to the hazard of working with individuals who have a history of violence.
There is currently a bill in the Senate that nurses’ unions and others are pushing Congress to advance. The bill called the Workplace Violence Prevention for Health Care and Social Services Workers Act (S. 4182), is the counterpart to one that passed the House by a 254-166 margin in April 2021. S. 4182 would require federal OSHA to adopt a workplace violence prevention standard, based largely on California’s existing rule, for the healthcare and social services sectors.
Eight states other than California require certain healthcare facilities to have some type of workplace violence prevention program: Connecticut, Illinois, Maine, Maryland, New Jersey, New York, Oregon, and Washington. However, those states have not proposed rules similar to Cal/OSHA’s Proposed Rule, which would be applicable to all industries.