The 12 Days of California Labor and Employment Series – Day 12 "New Requirement for Workplace Violence Prevention Plan"

In the spirit of the season, we are using our annual "12 days of the holidays" blog series to address new California laws and their impact on California employers. On the twelfth and final day of our holiday series, my labor and employment attorney gave to me twelve drummers drumming and SB 553.

With the enactment of SB 553, California has become the first state to enact a workplace violence prevention law that applies to all industries and almost all employers in the state. SB 553 has numerous requirements for employers to put in place to ensure compliance. Employers will have until July 1, 2024, to establish, implement, and maintain their workplace violence prevention plan. Cal/OSHA will enforce the plan. 

Of note, SB 553 allows, as of January 1, 2025, an employee's collective bargaining representative to seek a temporary restraining order on the employee's behalf. It also requires the employer and/or collective bargaining representative to allow the filing employee to decline to be named in the temporary restraining order.

Who Does SB 553 Apply to?

It applies to all employers, employees, places of employment, and employer-provided housing with a few exceptions:

• healthcare facilities already covered by plan requirements for the health care industry;
• facilities operated by the Department of Corrections and Rehabilitation;
• certain law enforcement agencies;
• employees teleworking from a location of the employee's choice, which is not under the control of the employer; and
• places of employment where less than ten employees are working at the place at any given time and that are not accessible to the public.

What Must the Plan Include?

Employers must update their Injury and Illness Prevention Program (IIPP) to include a workplace violence prevention plan (WVPP). Alternatively, employers can also create a separate WVPP outside of the IIPP.

To comply with the IIPP, employers must incorporate the following into their plan:

• Create a system for communicating occupational safety and health matters, such as meetings, training, posting, written communications, committees, or other means of communication.
• Conduct periodic inspections when new substances, processes, equipment, or procedures come into the workplace and when the employer becomes aware of a new or previously unrecognized hazard.

The following items are required to be part of the WVPP:

• Identification of the person or persons responsible for implementing the program, including names and job titles
• Procedures to identify and evaluate workplace hazards, including scheduled periodic inspections to identify unsafe conditions and work practices
• Methods and procedures for correcting unsafe or unhealthy conditions and work practices in a timely manner
• Procedures for the employer to respond to reports of workplace violence and prohibit retaliation for reporting of same as well as to correct any unsafe and/or unhealthy condition
• Procedures to ensure that supervisory and non-supervisory employees comply with the plan
• Communication process on how to communicate with employees regarding workplace violence matters, including how an incident is reported, how it will be investigated, how the employee will be informed of the results, and any corrective actions
• Process on how to respond to workplace emergencies, including how to alert employees of such emergencies, evacuation or sheltering plans, and how to obtain help from staff assigned to respond to emergencies or law enforcement
• Training procedures, including when the plan is implemented but also when new substances, processes, procedures, or equipment are introduced to the workplace and represent a new hazard.
• Procedures for post-incident response and investigation
• Process for reviewing the effectiveness of the plan and revising the plan, if needed

Employers are also required to keep a violent incident log of all incidents that take place. This log must contain the following information:

• When the incident occurred
• A detailed description of the incident
• Classification of who committed the violent act
• The circumstances of the incident
• Where the incident occurred
• Consequences or outcome of the incident, such as were the police called
• Information about the person who completed the log entry, such as name and position

SB 553 provides four categories of classification that are to be utilized in the violent incident log. The categories include the following:

1. Violence by a person who has no legitimate business at the worksite and includes violent acts by anyone who enters the workplace or approaches workers with the intent to commit a crime
2. Violence directed at employees by customers, clients, patients, students, inmates, or visitors
3. Violence against an employee by a present or former employee, supervisor, or manager
4. Violence committed in the workplace by a person who does not work there but has or is known to have had a personal relationship with an employee

Workplace violence does not include lawful acts of self-defense or defense of others. Despite including the above information on a Violent Incident Log, an employer who is required to include it on the OSHA 300 log must still do that as well.

Employer Record-Keeping Responsibilities

SB 553 dictates that workplace violence hazard identification, evaluation, and correction records shall be created and maintained for at least five years. Interestingly, it also notes that training records shall be created and maintained for a minimum of one year. Training records must include training dates, contents or a summary of the training sessions, names and qualifications of persons conducting the training, and names and job titles of all persons attending the training sessions.

The violent incident logs shall also be maintained for at least five years, along with the records of workplace violence incident investigations. However, these records shall not contain medical information.

Any of the above records shall be made available to the division upon request for examination and copying. In addition, records about workplace violence hazard identification, evaluation and correction, training records, and violent incident logs shall also be made available to employees and their representatives, upon request and without cost, for examination and copying within 15 calendar days of a request.

Required Training

An employer is responsible for providing all employees with the initial training of the WVPP when it is first established. Training is then required to be conducted annually. 

Employees must be trained in all of the following:

• The employer's plan, how to obtain a copy of the employer's plan at no cost, and how to participate in the development and implementation of the employer's plan
• The definitions and requirements of the law
• How to report workplace violence incidents or concerns to the employer or law enforcement without fear of reprisal
• Workplace violence hazards specific to the employees' jobs, the corrective measures the employer has implemented, how to seek assistance to prevent or respond to violence, and strategies to avoid physical harm
• The violent incident log and how to obtain copies of records
• An opportunity for interactive questions and answers with a person knowledgeable about the employer's plan

Enforcement

Employers who fail to comply with SB 553 can be subject to citations, civil penalties, and abatement by the Division of Occupational Safety and Health. SB 553 also requires that Cal/OAHA, on or before December 31, 2025, propose, and the Standards Board to adopt, on or by December 31, 2026, 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.

The Division of Occupational Safety and Health will prepare a model Injury and Illness Prevention Program for non-high-hazard employment and make copies of the model program available to employers, upon request, for posting in the workplace.

Next Steps

Employers have three main steps to take as we enter into 2024. 

1. First and foremost, employers need to begin creating their WVPP. Employers must be aware that the WVPP is an ongoing process. Employers will need to continually monitor new hazards. When a new hazard is identified, the WVPP will need to be updated, which may also create the need for additional or new training. 
2. Formulate the training process that will be utilized for the WVPP. In addition, any new hires will also need the initial training upon their hire date.
3. Understand the record-keeping requirements as detailed.

Employers have six months to establish and implement the required WVPP. If it has not been started already, it is advised to begin this process as quickly as possible to ensure the WVPP is ready to go by the July 1, 2024 deadline.