On September 30, 2023, Governor Gavin Newsom signed SB 553 into law, establishing a new written Workplace Violence Prevention Plan (“WVPP”) requirement for nearly all California employers. The WVPP requirement, which becomes effective on July 1, 2024, is the first of its kind in the nation to apply to employers across industries. In connection with maintaining and implementing the WVPP, employers also must train employees on workplace violence hazards, maintain a violent incident log and other workplace violence-related records, and conduct periodic reviews of the WVPP. The law’s extensive requirements, which are detailed comprehensively below, will be enforced by California’s Division of Occupational Safety and Health (“Cal/OSHA”).
1. Background
In September 2014, California passed SB 1299, which gave Cal/OSHA until July 2016 to adopt a workplace violence prevention standard that required certain healthcare facilities to implement a written WVPP as a part of their Injury and Illness Prevention Program. Over the next two years, Cal/OSHA’s Standards Board drafted proposed regulations and completed the mandatory rulemaking process that allows for public comment on draft regulations. Following the adoption of the Workplace Violence Prevention in Healthcare standard in 2016, its various requirements became effective in April 2017 and April 2018.
The initial push for regulating workplace violence in non-healthcare industries started around the same time, in January 2017. Over 300,000 California teachers signed a petition requesting the creation of workplace safety standards to reduce injuries in the educational setting. During the advisory meeting on the petition, Cal/OSHA proposed a regulation that applied to all industries. However, drafting discussions on the regulation stalled in 2018. In May 2022, Cal/OSHA revived its previous efforts to establish a general industry workplace violence prevention standard by publishing a proposed regulation that would cover most California employers. Public comments were due by July 18, 2022, but there was no subsequent timeline on promulgation of the proposed regulation.
Dissatisfied with the pace of Cal/OSHA’s rulemaking process, the California legislature drafted SB 553 to accelerate the standard’s promulgation. SB 553 codifies the majority of the requirements contained in Cal/OSHA’s proposed regulation as new California Labor Code Section 6401.9. The requirements under Section 6401.9 become effective July 1, 2024. However, SB 553 also gives Cal/OSHA until December 1, 2025 to propose a general industry workplace violence prevention standard and gives Cal/OSHA’s Standards Board until December 31, 2026 to adopt the standard. Thus, there may eventually be additional and/or modified requirements for California employers to follow once the general industry workplace violence prevention standard is finalized. In the meantime, Cal/OSHA will enforce the requirements under Section 6401.9 and may issue citations for violations once the new law becomes effective.
2. Who Is Covered by Section 6401.9?
Section 6401.9 applies to most California employers, but does not apply to the following employers, employees, and places of employment:
- Employers who are already covered by the Workplace Violence Prevention in Healthcare standard (or employers that already comply with that standard);
- Employees teleworking from a location of the employee’s choice that is not under the control of the employer;
- Places of employment that are not accessible to the public and have less than 10 employees working at any given time; and
- Facilities operated by the California Department of Corrections and Rehabilitation and law enforcement agencies.
3. What Constitutes Workplace Violence Under Section 6401.9?
Section 6401.9 broadly defines workplace violence as “any act of violence or threat of violence that occurs in a place of employment.” More specifically, workplace violence may include the “threat or use of physical force 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.” Workplace violence also may include an “incident involving the threat or use of a firearm or other dangerous weapon, including the use of common objects as weapons, regardless of whether the employee sustains an injury.” Workplace violence may be committed by anyone who enters the workplace and covers workplace violence directed at current or former employees by customers, clients, or visitors, including an individual who has or has had a personal relationship with an employee. Thus, under the new law, a potentially threatening comment from a customer, significant other, or fellow employee that an employee subjectively perceives as traumatizing or stress-inducing may qualify as “workplace violence” and require an investigation and response from the employer.
4. Written WVPP Requirement
Section 6401.9 mandates that employers establish, implement, and maintain a Workplace Violence Prevention Plan (“WVPP”) with specific required elements and procedures. The WVPP must be in writing and available to employees and authorized employee representatives at all times. The WVPP may appear as a standalone section in the employer’s Injury and Illness Prevention Program or as a separate document.
The WVPP must include each of the following:
- Names or job titles of the persons responsible for implementing the WVPP;
- Effective procedures allowing for active involvement of employees and authorized employee representatives in developing and implementing the WVPP;
- Methods the employer will use to coordinate implementation of the WVPP with other employers, when applicable;
- Effective procedures to accept and respond to reports of workplace violence, and to prohibit retaliation against an employee who makes such a report;
- Procedures to ensure compliance from all employees, including supervisors;
- Procedures to communicate with employees regarding workplace violence matters, including how an employee can report a violence concern as well as how those concerns will be investigated and/or corrected;
- Procedures to respond to workplace violence emergencies;
- Procedures to develop and provide required training under Section 6401.9;
- Procedures to identify, evaluate, and correct workplace violence hazards in a timely manner;
- Procedures for post-incident response and investigation; and
- Procedures to review the effectiveness of the WVPP periodically and, if workplace violence incident occurs, how to revise the WVPP as needed.
5. Violent Incident Log
Section 6401.9 also requires employers to maintain an incident log for “every workplace violence incident” that occurs in the workplace and not just those that result in an injury. The log entry must include the following:
- The date, time and location of the incident.
- Identification of the type of workplace violence that occurred.
- A detailed description of the incident that includes classifications on who committed the violence, the circumstances at the time of the incident, and where the incident occurred.
- Consequences of the incident, including any involvement of law enforcement and any actions taken to protect employees from a continuing threat or from any other hazards identified as a result of the incident.
- Information about the person completing the log entry.
6. Required Employee Training
Section 6401.9 requires employers to provide employees with “effective training” that covers:
- The employer’s WVPP;
- How to obtain a copy of the WVPP at no cost;
- How to participate in development and implementation of the WVPP;
- The definitions and requirements under Section 6401.9;
- How to report workplace violence incidents or concerns to the employer or law enforcement without fear of reprisal;
- Information regarding workplace violence hazards specific to the employees’ jobs;
- Corrective measures that the employer has implemented;
- How employees can “seek assistance to prevent or respond to violence, and strategies to avoid physical harm;” and
- The employer’s violence incident log and how to obtain copies of required records.
Employers must provide the above training when the WVPP is first established and annually thereafter. As part of the training, employers also must provide employees with an opportunity for interactive questions and answers with a person knowledgeable about the WVPP. Additional training must take place when a new or previously unrecognized workplace violence hazard has been identified or when changes are made to the WVPP (but may be limited to addressing the new hazard or change).
7. Recordkeeping
Consistent with Cal/OSHA’s Injury and Illness Prevention Program recordkeeping requirements, Section 6401.9 requires that employers create and maintain training records for a minimum of one year. The following records must be maintained for a minimum of five years:
- Records of workplace violence hazard identification, evaluation, and correction (i.e., workplace violence hazard assessments);
- Violent incident logs; and
- Workplace violence incident investigations (these records, however, should not contain “medical information”).
Section 6401.9 requires employers to make all required records available to Cal/OSHA upon request for examination and copying. Additionally, hazard assessment records, training records, and violent incident logs must be made available to employees and their representatives, upon request and without cost, for examination and copying within 15 calendar days of a request.
8. Next Steps
In light of the extensive requirements under Section 6401.9, California employers should begin to take active steps to ensure compliance by July 1, 2024, including:
- Identifying who will implement and administer the WVPP;
- Identifying potential procedures that may allow employees and authorized employee representatives to assist in developing and implementing the WVPP;
- Assessing potential workplace violence hazards;
- Drafting a written WVPP;
- Identifying potential procedures for investigating and responding to workplace violence; and
- Preparing training for supervisors and employees.
Employers with any questions or concerns about compliance should consult with experienced employment law counsel.
This article is not an unequivocal statement of the law, but instead offers some potential issues to consider with counsel. This is provided for informational purposes only and does not constitute legal advice and is not intended to form an attorney-client relationship. Please contact your Sheppard Mullin attorney for additional information.