On May 17, 2022, the California Division of Occupational Safety and Health (Cal/OSHA) released a revised discussion draft of a proposed regulation for workplace violence prevention in the general industry standards. If adopted, the regulation would become section 3343 under GISO Chapter 4, Subchapter 7 of Title 8 California Code of Regulations. The division is seeking input on the proposed revisions and is inviting interested parties to submit written comments by July 18, 2022.
The revisions would include definition changes to a number of terms, including the following.
“Threat of violence”
The proposed rule would remove the reference to “physically” injured. The revised definition would provide that “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,” would constitute a threat of violence.
This term would no longer include “lawful acts of self-defense or defense of others,” or “self-inflicted harm that does involve violence or threats of violence to others.” Rather, “workplace violence” would be defined as “any act of violence or threat of violence that occurs in a place of employment.”
Further revisions would include Cal/OSHA’s elimination of the definitions of “chief,” “division,” and “union representative.”
Workplace Violence Prevention Plans
Workplace violence prevention plans are currently required to be in writing and available to employees. Cal/OSHA proposed that employers also make the plans available to “authorized employee representatives.”
Under the current rules, employers are required to involve employees and union representatives when developing and implementing a workplace violence prevention plan. The proposed rule would provide that employers involve employees and “authorized employee representatives”—that is, not only union representatives—in the development and implementation of their plans.
The proposal would specify that “when applicable,” an employer would be required to include “methods the employer will use to coordinate implementation of the plan with other employers.”
Procedures to respond to workplace violence emergencies (which would no longer specifically include active shooter threats) would include “applicable procedures to obtain help from staff, if any, assigned to respond to workplace violence emergencies.”
Under the current rules, employers are required to have procedures to review their plans periodically and after a “workplace violence incident that results in an injury.” The proposal would eliminate “that results in an injury.”
Violent Incident Logs
Employers would still be required to maintain a violent incident log, but Cal/OSHA is proposing minor revisions. Employers would be required to record or include:
- the date, time, and location of the incident, but without reference to the “specific” location;
- a description of the incident, but the proposal would delete the rule’s examples/types of descriptors (e.g., biting, use of weapons); and
- consequences of the incident, but not whether medical treatment was provided or whether anyone provided necessary assistance to conclude the incident and whether employees lost any time from work.
The proposal would also require employers to record information in the log about “every workplace violence incident”—not just those that result in an injury. Currently, employers are required to have procedures for a post-incident response and investigation and to include those procedures in the violent incident log. The proposal would eliminate the requirement to include the post-incident response and investigation in the log.
The proposal would require employers to “provide employees with general awareness training on workplace violence that includes: the employer’s [p]lan, how to obtain a copy of the employer’s plan, how to participate in development and implementation of the employer’s [p]lan, the definitions and requirements in this section, 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 training to employees that includes “workplace violence hazards specific to the employees’ jobs,” corrective measures that have been implemented, and how employees can “seek assistance to prevent or respond to violence, and strategies to avoid physical harm.”
Ogletree Deakins will continue to monitor and report on developments with respect to the proposed Workplace Violence Prevention regulation and will post updates on the firm’s California and Workplace Safety and Health blogs.