Cal/OSHA Releases New Draft of Workplace Violence Regulation

California Senate Bill 553, which took effect on July 1, 2024, mandates that most California employers create and implement a comprehensive Workplace Violence Prevention Plan (WVPP). Such a plan is designed to improve workplace safety by requiring employers to identify and evaluate hazards as well as train workers to respond to and report incidents. The legislation also requires the California Occupational Safety and Health Administration (Cal/OSHA) to develop a workplace violence prevention regulation. Last month, the agency released a new draft of its proposed regulation, an update to last year’s version.

Updated Requirements 

The new proposal presents some significant changes. One of the biggest amendments concerns employees responding to violent incidents.

“It previously said that employees are not to engage criminals or not to defend, they're supposed to retreat away from it,” said Brooke Tabshouri, an attorney with Duane Morris in San Diego. The new draft says that “if an employee engages in an act of lawful self-defense or defense of others, that's not a violation of this policy and an employer cannot retaliate against an employee for having done that.”

The new draft identifies various kinds of workplace violence hazards. These include the following circumstances:

• Employees working alone or away from other workers.
• Poor lighting or lack of visibility. 
• Access to the public. 
• Locations without obvious escape routes. 
• Presence of money or valuable goods.
• Frequent or regular contact with the public.
• Working early in the morning or late at night. 
• Selling, distributing, or providing alcohol, marijuana, or pharmaceutical drugs.

The new draft also mandates that employers use engineering or work practice controls to eliminate or reduce worker exposure to any of the above workplace violence risks. It is likewise the responsibility of employers to maintain records of their inspections and any corrective measures taken to fix workplace hazards.

Employers must also have effective procedures for responding to incidents of workplace violence, including providing medical aid, identifying any involved employees, offering trauma counseling (for employers with more than 25 workers), conducting a debriefing, identifying any contributing hazards, and maintaining a written investigation.

Workplace Violence Prevention Plan

The focus of SB 533 and its subsequent drafts is to require employers to have a WVPP in place.

“The plan must be a layout for how employers intend to address workplace violence in their workplaces,” said Alka Ramchandani-Raj, an attorney with Littler in Walnut Creek, Calif.

In addition to identifying the person responsible for implementation, the plan must include the method of responding to violence, reporting practices, investigation guidelines, assurances against retaliation, training procedures, and steps to correct workplace hazards.

“The good news is Cal/OSHA has published a model plan that is almost like a worksheet to fill out,” Tabshouri said, which makes it simpler for employers to follow the agency’s requirements. 

Employer Obligations

Cal/OSHA’s regulation applies to most employers in the state, but certain industries may be at higher risk of workplace violence, underscoring the importance of having a compliant and comprehensive WVPP. Ramchandani-Raj highlighted jobs in which employees may be working at night; working in secluded locations; having regular or frequent contact with the public; selling alcohol, marijuana, or pharmaceutical drugs; or working where money or valuable goods are present. 

Employers may wonder if the new draft necessitates any practical changes to the workplace violence prevention training that they already provide.

“Since the new proposal further defines workplace violence hazards and investigation protocols, employers must ensure that their training addresses any of the new terms that they did not previously include in their last training,” Ramchandani-Raj said. Employers should therefore evaluate their training protocols to ensure they comply with the revised language in the new draft.

When it comes to reporting incidents of workplace violence, employers must document all threats in their log, whether they resulted in harm or not. “Threats and attempted violence and actual acts of violence all have to be reported,” Tabshouri confirmed.  

Employers should investigate any threats or near misses, Ramchandani-Raj said, and “identify any workplace violence hazards that may have contributed to the potential threat or near miss.”

The draft regulations similarly take into account digital threats of violence made online or electronically. “This includes social media, text messages, phone calls, videos,” and the like, Tabshouri explained. She added, however, that the draft clarifies that employers only need to be concerned about threats they could reasonably be aware of.

Employers should understand that noncompliance with the proposed regulation, when made final, will likely result in the issuance of citations and penalties. “Cal/OSHA has already been issuing citations under Labor Code 6432 for workplace violence, which will likely continue as a citation,” Ramchandani-Raj said.

“There could be penalties that range anywhere from $15,000 all the way up to something like $155,000 if it’s willful,” Tabshouri said. She cautioned employers to document every instance of workplace violence; pretending it didn’t happen is not an option. “Cal/OSHA does need to be made aware of it when required, so hiding it is never in your interest. The punishment is often a lot worse than the crime when that happens.”