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California enacted new occupational safety and health laws last year that will impact Golden State employers in 2015. These new statutes deal with harassment training, cool-down periods, penalty abatements and workplace violence prevention.
Except for the violence prevention law, all legislation went into effect Jan. 1, 2015.
Harassment Training Must Cover ‘Abusive Conduct’
This law adds abusive conduct training obligations to the Fair Employment and Housing Act (FEHA). Referred to as the “anti-bullying law,” it requires employers with 50 or more employees currently required to provide at least two hours of sexual harassment training to supervisory employees every two years to now also include education on preventing abusive conduct in the workplace.
Abusive conduct is defined by state law as when an employer or employee acts with malice in the workplace, or acts in a manner that a reasonable person would find hostile, offensive and unrelated to an employer’s legitimate business interests. It may include repeated verbal abuse, verbal or physical conduct that a reasonable person would find threatening, or undermining of a person’s work performance. “This new law does not mean that an employee can sue for abusive conduct in the workplace unless, of course, the conduct becomes discrimination or harassment against a protected class,” reminded the California Chamber of Commerce.
Although the law was aimed at preventing workplace bullying, it does not amend the FEHA’s anti-harassment provisions to ban bullying, said Andrew Sommer, a partner in the San Francisco office of law firm Conn Maciel Carey. “The anti-harassment laws continue to require that, at a minimum, the conduct be motivated by one of the enumerated protected classifications such as an employee’s race, sex, age or national origin.”
Employers are supportive of the law, remarked Jason Gabhart, California state government relations advisor for the Society for Human Resource Management. “With this bill I get a lot of nodding of heads with employers either saying ‘That makes sense’ or ‘We’re already doing that.’ ”
Employers Must Prove Abatement of Safety Hazards
California employers now have to prove, under penalty of perjury, that workplace safety and health hazards have been corrected before receiving any penalty modifications, even while they are contesting the citations in an appeals process. The new law also requires employers to fix the most serious hazards cited by the California Division of Occupational Safety and Health (Cal/OSHA) more promptly.
Prior to this, an employer wasn’t required to abate a hazard during the appeals process. Proponents of the law voiced concern that dangerous workplace conditions would not be corrected for months or years during appeal.
Cal/OSHA will be prohibited, in the case of serious violations, from lessening civil penalties for fixing hazards (abatement) or giving financial credit for abatement unless the employer has done one of the following three things:
Cal/OSHA will assess additional civil penalties for failure to abate, and will conduct a reinspection of serious violations within 45 days if employers do not produce the signed statement and evidence of abatement within 10 working days of the deadline.
The agency may stay abatement if the employer can demonstrate that a stay won’t adversely affect the health and safety of its workers.
“This law needlessly creates a separate appeal process to stay abatement of alleged safety violations where the employer seeks reconsideration of a final decision classifying a citation as serious, repeat serious or willful serious,” said Sommer. “Because now the onus is placed on employers to affirmatively seek the stay of abatement orders upon filing a petition for reconsideration, it is important that early in the administrative proceeding employers develop strategies around seeking the stay and develop the underlying facts.”
Employers Must Provide Paid Cool-Down Recovery Periods
The state labor code was amended to include penalties for failure to provide cool-down recovery periods to employees. The law clarifies that a ‘‘recovery period’’ means a cool-down period afforded to an employee to prevent heat illness. The law also states that employees must be paid during recovery periods and that these breaks count as hours worked.
Hospitals Must Develop Violence Prevention Plans
The new law requires the Cal/OSHA board to adopt standards by Jan. 1, 2016, that require certain hospitals, including general acute care hospitals or acute psychiatric hospitals, to develop a comprehensive workplace violence prevention plan as part of their injury and illness prevention program.
The law requires hospitals to establish workplace violence prevention plans that include:
Systems for investigating and responding to incidents of workplace violence.
Systems to assess and address factors that contribute to violence, including security and staffing levels, security risks associated with specific units, facility access, and security in areas surrounding the facility such as employee parking lots.
Education and training programs to help employees identify and respond to workplace violence, and resources made available to employees who are victims of violence.
Requirements for hospitals to document and report incidents of violence to Cal/OSHA.
The law also requires Cal/OSHA to annually post those reported violent incidents that occurred in the previous year on its website by Jan. 1, 2017.
These standards are likely to be implemented within the next six months, according to the California Chamber of Commerce.
Roy Maurer is an online editor/manager for SHRM.
Follow him @SHRMRoy
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