Workplace Violence Prevention Obligations Coming to Most California Worksites

The California Legislature has enacted a first-of-its-kind workplace violence prevention law that applies across all industries and to nearly every employer with operations in California. On September 30, 2023, Governor Gavin Newsom signed Senate Bill 553, which sets forth multiple new requirements aimed at combating workplace violence. The California Department of Industrial Relations, Division of Occupational Safety and Health ("Cal/OSHA") will enforce these obligations through inspections, penalties, and abatement requirements. Covered employers must have written plans, training, and more in place by July 1, 2024.

Slightly further down the road, effective January 1, 2025, SB 553 will also permit collective bargaining representatives to seek temporary restraining orders on behalf of employees subjected to workplace violence or threats of violence.

Workplace Violence Prevention Plans: Applicability and Requirements

Because the workplace violence prevention plan requirements are based on statute and not regulation, they will bypass the typically lengthy rulemaking process. By July 1, 2024, nearly all California employers must update their existing injury and illness prevention programs to include workplace violence prevention plans (WVPPs) that comply with the new Labor Code section 6401.9.

Employers/Employees Impacted: The new law is not industry specific and applies to "all employers, employees, places of employment, and employer-provided housing," with a few specific exemptions that include: 1) health care facilities and employers covered by California's existing workplace prevention standard for the healthcare industry; 2) facilities operated by the Department of Corrections and Rehabilitation; 3) certain law enforcement agencies; 4) teleworkers; and 5) places of employment that are not accessible to the public and have fewer than 10 employees working at a location at a given time.

Plan Requirements: Employers' written WVPPs must be tailored to each workplace. The WVPPs must address the specific hazards of every work area and operation and identify appropriate corrective actions to address those hazards. Employers will be required at a minimum to annually review their WVPP, as well as any time a deficiency is observed and following any workplace violence incident.

Each WVPP must include the following:

1. The names or job titles of the people responsible for the plan.
2. Procedures to obtain the active involvement of employees and their representatives in developing and implementing the plan, including hazard identification, training, and incident reporting.
3. Methods the employer will use to coordinate implementation of the plan with other employers, as applicable (for example, at multi-employer worksites).
4. Procedures for the employer to respond to reports of workplace violence and to prohibit retaliation for such reporting.
5. Procedures to ensure that supervisory and nonsupervisory employees comply with the plan.
6. Procedures to communicate with employees regarding workplace violence matters, including how an employee can report an incident, how the concerns will be investigated, how the employee will be informed of the results, and any corrective actions.
7. Procedures to respond to actual workplace emergencies, including means to alert employees of workplace emergencies, evacuation or sheltering plans, and how to obtain help from staff assigned to respond to emergencies (if any) or law enforcement.
8. Training procedures.
9. Procedures to identify and evaluate and correct workplace violence hazards, including scheduled inspections.
10. Procedures for post-incident response and investigation.
11. Procedures for reviewing the effectiveness of the plan and revising the plan as needed.

Penalties: Cal/OSHA will enforce the new law through its standard inspection, citation, and penalty framework. Depending on the nature of an alleged violation, potential penalties may climb as high as $25,000 (for violations classified as "serious") or $153,744 (for violations classified as "willful"). Cal/OSHA will also require employers deemed out of compliance to abate alleged violations to Cal/OSHA's satisfaction, potentially including changes to employers' policies and procedures.

Violent Incident Logs

Employers will be required to maintain a violent incident log for every occurrence of workplace violence, including:

• when the incident occurred;
• a detailed description of the event;
• the classification of who committed the violence, such as customer, stranger, co‑worker, or partner or spouse;
• the circumstances at the time of the incident;
• where the incident occurred;
• the consequences of the incident, such as whether law enforcement was contacted and the employer's actions to protect against a continuing threat; and
• information about the person who completed the log entry.

In addition, logs shall identify the specific kind of incident from four statutorily-prescribed categories: 1) violence against an employee committed by someone who has no legitimate business at the worksite; 2) violence against an employee committed by a customer, patient, or visitor; 3) violence against an employee by a current or former employee; and 4) violence committed by a non-employee who has a personal relationship with an employee. Acts of self-defense or defense of others are excluded from the definition of "workplace violence."

Employers should note that recording an incident in a violent incident log does not appear to excuse an employer from also recording the same incident on the employer's OSHA 300 logs if the incident results in an injury or illness meeting the 300 log recordability requirements. If a workplace violence incident results in a recordable injury, employers will need to record the incident on both the violent incident log and the 300 log.

Employee Training

Employers must provide employees with workplace violence training when the WVPP is initially established and annually thereafter. The training covers a wide breadth of information, including:

• the employer's plan, including how to obtain a copy;
• how to participate in the development and implementation of the plan;
• SB553's definitions and requirements;
• how to report incidents and concerns;
• workplace violence hazards specific to the employee's job and corrective measures the employer has implemented;
• the requirements for the violent incident log and how to obtain copies as permitted by the statute; and
• an opportunity for interactive discussion.

Employers will also be required to provide supplemental training when a new or previously unrecognized workplace violence hazard has been identified and any time changes are made to the WVPP.

Recordkeeping

Employers will be required to maintain the following records for five years: 1) records of workplace violence hazard identification, evaluation, and correction; 2) workplace violence incident investigations; and 3) violent incident logs.

Training records must be maintained for one year.

All WVPP records required under the statute must be made available to Cal/OSHA upon request. Employees and their representatives are entitled to records reflecting hazard identification, evaluation, and correction, as well as violent incident logs, within 15 days of request.

Instruction to Cal/OSHA Regarding General Industry WVPP Regulations

In an unusual move, SB 553 requires Cal/OSHA to propose, and the Standards Board to adopt, standards regarding WVPPs through rulemaking that include, at minimum, the requirements of SB 553, as well as any other requirements Cal/OSHA may deem necessary. Cal/OSHA's proposal deadline is December 31, 2025, and its Standards Board must adopt the standards by December 31, 2026. Employers will be required to follow any new obligations that the Standards Board adopts, including updating their written WVPPs.

Temporary Restraining Orders for Workplace Violence

SB 553 also amends California Code of Civil Procedure section 527.8. Currently, Section 527.8 authorizes an employer whose employee has suffered workplace violence to seek a temporary restraining order on the employee's behalf. Beginning January 1, 2025, Section 527.8 will also authorize a collective bargaining representative to seek the same type of temporary restraining order on the employee's behalf. Additionally, the amended law will require the employer and/or collective bargaining representative to provide the filing employee with the opportunity to decline to be named in the temporary restraining order.

Employer Takeaways

The new law imposes myriad obligations on employers to develop written plans and training, conduct assessments and prepare investigation protocols, and retain and disclose records related to sensitive issues in a manner that does not currently exist for most employers. The potential consequences of not doing so include penalties that can quickly add up to significant amounts. The July 1, 2024 deadline will come quickly, and employers with operations in California are encouraged to begin developing their plans now.

If you have any questions about your company's compliance, please contact DWT's OSHA team and employment services group, who are available to advise and assist. In the meantime, DWT will continue to monitor and provide updates as they occur.