As Golden State employers know, a new workplace violence prevention law for non-healthcare employers went into effect on July 1, 2024.  Cal/OSHA, the agency charged with overseeing workplace safety and health, has been directed to develop regulations to implement this new law.

Many employers are hoping that the new regulations will shed some light on the ambiguities that plague the new law.  After all, employers and Cal/OSHA were instructed to comply with this new law before Cal/OSHA had an opportunity to draft or implement its regulations.  At this early stage in the drafting process, the utility of the final regulations remains to be seen.  However, employers have an opportunity to have their voices heard while these regulations are being put into place.

The proposed regulations are available for review and public comment.  The draft changes revise what was outlined in the law passed last year under the Labor Code.  Interested stakeholders may submit written comments to the Deputy Chief of Health, Eric Berg at eberg@dir.ca.gov until September 3, 2024.  

Here are the highlights of the proposed regulations:

• Cal/OSHA proposes to further limit the “small, private worksite” exception.
  • The law does not apply to small, private worksites in compliance with Cal/OSHA’s injury and illness prevention requirements.  
  • The original statute defined these small worksites as “[p]laces of employment where there are less than 10 employees working at the place at any given time and that are not accessible to the public . . . .” 
  • The draft regulation proposes to further narrow the definition so that it would only apply to places that have 10 employees working at the place – removing the “at any given time” language.

• Cal/OSHA provides examples of engineering controls and work practice controls to reduce workplace violence hazards.
  • Engineering controls (aspects of the built space, or a device that removes or creates a barrier to a workplace violence hazard) may include, but are not limited to:
    • electronic or mechanical access controls to employee-occupied areas;
    • weapon detectors (installed or handheld);
    • enclosed workstations with shatter-resistant glass;
    • deep service counters;
    • spaces configured to optimize employee access to exits,
    • escape routes, and alarms;
    • separate rooms or areas for high-risk persons;
    • locks on doors;
    • furniture affixed to the floor;
    • opaque glass (protects privacy, but allows employees to see where potential risks are);
    • improving lighting in dark areas, sight-aids, improving visibility, and removing sight barriers;
    • video monitoring and recording; and
    • personal and workplace alarms.
  • Work practice controls (procedures, rules, and staffing used to reduce workplace violence hazards) may include, but are not limited to:
    • appropriate staffing levels;
    • provision of dedicated security personnel;
    • an effective means to alert employees of the presence, location, and nature of a security threat;
    • control of visitor entry;
    • methods and procedures to prevent unauthorized firearms and weapons in the workplace;
    • employee training on workplace violence prevention methods;
    • and employee training on procedures to follow in the event of a workplace violence incident or emergency.

• Cal/OSHA proposes changes to the employer’s system for communicating regarding workplace violence matters.
  • Employers already are required to communicate with employees regarding workplace violence concerns, including allowing employees to report concerns, investigate employee concerns, and notify employees of the results of the investigation and corrective action to be taken.  The proposed regulations would:
    • Give employers these same obligations for workplace violence concerns reported by authorized employee representatives.
    • Require employers to keep a record of all reports of workplace violence concerns, including anonymous reports, and keep a record of all investigations into these concerns.
    • Require employers to keep the identity of reporting employees confidential unless the employee expressly allows their identity to be shared.

• Cal/OSHA provides guidance on the types of workplace violence hazards to be considered in an employer’s hazard inspections.
  • As proposed by Cal/OSHA, an employer’s inspection for workplace violence hazards must be documented and must include at least the following workplace violence risk factors:
    • Employees working alone or in locations isolated from other employees.
    • Areas with poor illumination or blocked visibility (e.g. blind spots) of surrounding areas.
    • Entries to places of employment where unauthorized access can occur.
    • Work locations, areas, or operations that lack effective escape routes.
    • Presence of money or valuable goods.
    • Frequent or regular contact with the public.
    • Working late at night or early morning.
    • Selling, distributing, or providing alcohol, marijuana, or pharmaceutical drugs.

• Cal/OSHA seeks to enhance the methods for taking corrective action for workplace violence hazards.
  • As part of requiring employers to timely correct workplace violence hazards, Cal/OSHA also proposes to require the following:
    • Engineering and work practice controls (as appropriate for the workplace) must be implemented to eliminate or minimize employee exposure to workplace violence hazards that have been identified.
    • With the exception of dedicated security personnel, employees may not be required or encouraged to confront persons suspected of committing a criminal act or engaging in workplace violence.
    • Employees must be allowed to remove themselves from an unsafe condition without fear of reprisal.
    • Employers must keep records of the corrective measures both considered and implemented to address workplace violence hazards.

• Cal/OSHA spells out the requirements for responding to, and investigating, workplace violence incidents.
  • The statute did not specify how an employer must respond to a workplace violence incident or investigate it.  Cal/OSHA proposes to require employers to do at least the following:
    • Provide immediate medical care or first aid to employees who have been injured in the incident.
    • Identify all employees involved in the incident (but do not include names and other personally identifiable information in the written investigation report).
    • For employers with more than 25 employees, make available individual trauma counseling to employees affected by the incident.
    • Conduct a post-incident debriefing as soon as possible after the incident with employees, supervisors, and security involved in the incident.
    • Identify and evaluate any workplace violence hazards that may have contributed to the incident.
    • Identify and evaluate whether appropriate corrective measures developed under the employer’s plan were effectively implemented and if any new or additional corrective measures are recommended.
    • Solicit from employees involved in the incident their opinions regarding the cause of the incident, and whether any measure would have prevented the incident.
    • For each workplace violence incident, prepare a written investigation report, which shall include all of the following:
      • Description of how the employer complied with the post-incident response and investigation requirements identified above.
      • All information the employer received or produced regarding the hazards that contributed to the incident, corrective measures, and employees’ thoughts on the cause of the incident.
      • Results and recommendations of the incident investigation.
      • Note: The current version of the proposed regulations would not allow employee names or personally identifiable information in the written investigation report.  It is unclear if this is a typographical error, and if the agency intended to refer to the violent incident log.  The agency’s original model workplace violence prevention plan document contained this same language and was later amended to refer to the violent incident log.

An advisory committee meeting will be held later this year to further discuss the proposed regulations.