United States: Coming Soon To California Workplaces: Mandated Violence Prevention Plans

A new California law will require almost all employers in the state to implement written plans to prevent incidents of workplace violence. Ilana Morady and Brad Doucette, a pair of California-based attorneys from Seyfarth Shaw, explore the details.

Earlier this year, Gov. Gavin Newsom signed SB 553, a first of its kind workplace violence prevention law, which requires nearly all California employers to create, adopt and implement written workplace violence prevention plans that include annual workplace violence prevention training, violent incident logs and the creation and retention of various records, among other requirements.

Interestingly, the California Division of Occupational Safety and Health (Cal/OSHA) in collaboration with various stakeholders had been working on a general industry workplace violence standard since 2017, and the new law requires the agency to start enforcing new workplace violence requirements that are largely modeled on (though not identical to) Cal/OSHA's existing draft standard. Under the new law, the Cal/OSHA standards board is required to adopt workplace violence standards codifying SB 553 no later than Dec. 31, 2025. But regulations or not, Cal/OSHA is empowered and directed to start enforcing SB 553 on July 1, 2024.

Who is covered?

The requirement for a workplace violence prevention plan applies to all employers and employees in the state, with a few limited exceptions:

• Employers already covered by Cal/OSHA's violence prevention in healthcare 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
• Department of Corrections and Rehabilitation and law enforcement agencies

Defining 'workplace violence'

"Workplace violence" is defined broadly 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 use of firearms or dangerous weapons regardless of whether an employee sustains an injury.

However, the definition also captures acts some might think waters down the meaning of workplace violence, such as a threat 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. This means there's no "reasonable person" test; the definition is subjective. A seemingly innocuous comment to some might be considered workplace violence based on the perception of an employee.

What must be included in a workplace violence prevention plan?

Workplace violence prevention plans must be in writing and easily accessible by employees. Plans can be included as a section within an existing injury and illness prevention plan (IIPP) or they can be maintained as a separate document.

Along with identifying the individuals responsible for implementing the plan, it must include the following procedures for:

• Involving employees in the development and implementation of the plan.
• Coordinating implementation of the plan and training with other employers such as staffing agencies.
• Accepting and responding to reports of workplace violence and prohibiting retaliation against reporting employees.
• Ensuring employees comply with the plan.
• Communicating 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.
• Responding to actual and potential workplace violence emergencies.
• Identifying and evaluating workplace violence hazards.
• Post-incident response and investigation.
• Reviewing plan effectiveness annually, when deficiency is apparent or after a workplace violence incident.

Training requirements

SB 553 requires employee training. Employers must provide employees with initial training when the plan is established and continue to conduct annual trainings thereafter. Training needs to cover the following topics:

• The employer's plan and how employees can obtain a free copy of it.
• How to report workplace violence hazards and workplace violence incidents.
• Corrective measures the employer has implemented.
• How to seek assistance to prevent or respond to violence.
• Strategies to avoid physical harm.
• Information about the violent incident log and how employees can obtain a copy.

Additional training is required when new or previously unrecognized workplace violence hazards are identified, or when there are changes to the plan. Employers must retain training records for at least one year.

Recording and reporting requirements

Employers are required to record every workplace violence incident in a violent incident log including:

• Date, time and location of the incident.
• Detailed description of the incident.
• Classification of who committed the violence.
• 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.
• Employers must retain the log for 5 years and omit personal identifying information. Employees are entitled to view and copy the log within 15 calendar days of a request.

Other recordkeeping requirements

Unlike the IIPP standard, which has a one-year retention period for records of implementation, SB 553 has a lengthy five-year retention requirement for workplace violence hazard identification, evaluation and correction records. Records of workplace violence incident investigations (which may not include medical information) are also subject to the five-year retention requirement.

Changes to existing rules on seeking temporary restraining orders on behalf of employees

Finally, SB 553 changes California's Code of Civil Procedure by adding several employee-friendly protections to the process by which employers may petition for temporary restraining orders (TROs) and orders after hearings (i.e. restraining orders that are often in place for three or more years) on behalf of employees.

California Code of Civil Procedure Section 527.8 previously allowed employers to petition for a workplace violence TRO on behalf of their employees who had "suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace" to seek protection from an individual, often a former employee or member of the public who is violent and/or threatening the employee at their workplace. This was a helpful, albeit limited, remedy for employers seeking to protect the workplace.

SB 553 expands Section 527.8 and authorizes collective bargaining representatives, not just employers, to petition for TROs on behalf of employees, allowing even more relief for employees faced with threats and violence. SB 553 also provides for employee names to be withheld from the TRO papers, providing anonymity for victims who otherwise might have hesitated on supporting a TRO for fear of retaliation from the individual at issue.

SB 553 also expands upon the actionable conduct necessary to give rise to a TRO and amends Section 527.8 to allow employers to seek a TRO on behalf of their employee where the employee suffers harassment — and not simply violence or threats of violence.

Will Cal/OSHA publish a model program?

Cal/OSHA frequently creates model programs, and using them has benefits: They're easy to use, and, if completed correctly and implemented properly, they pass muster during a Cal/OSHA inspection. While Cal/OSHA hasn't yet said whether it plans to publish a model workplace violence prevention plan program, the expectation is that the agency will address this question at one of its upcoming advisory committee meetings. Cal/OSHA sometimes publishes sample training modules, and may also do so for the workplace violence training aspects of SB 553, but employers should keep in mind that training will need to be tailored to each individual worksite.

Originally published by Corporate Compliance Insights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.