Cal/OSHA Publishes Long-Awaited Guidance and Model Workplace Violence Prevention Plan
Starting July 1, 2024, California employers across all industries must have a written Workplace Violence Prevention Plan (“WVPP”) in place. As previously reported, the recently enacted SB 553 established this new requirement, along with mandatory employee training, initial and periodic workplace violence hazard inspections, and maintenance of a violent incident log and other related records. On March 18, 2024, California’s Division of Occupational Safety and Health (“Cal/OSHA”), the agency responsible for enforcing the new law’s requirements, announced the creation of its Cal/OSHA Workplace Violence Prevention Guidance and Resources webpage. The webpage contains guidance and educational materials on the new law and workplace violence prevention, a model WVPP, fact sheets, and other resources for employers and employees.
1. General Impact of Cal/OSHA Guidance
Cal/OSHA frequently publishes guidance, including model plans, to assist employers with compliance on safety regulations that require written plans and programs (such as California’s Injury and Illness Prevention Program regulation). Although employers are not required to use the model plans, they can serve as a “fillable template” and provide the basic framework for various required procedures and policies. That said, the plans usually are written in a way to make them broadly applicable to all employers. Moreover, because they are written with employee safety as the ultimate focus, some provisions may go above and beyond what regulations require.
2. Summary of Cal/OSHA’s Guidance
The newly created Cal/OSHA Workplace Violence Prevention Guidance and Resources webpage on Cal/OSHA’s website contains various types of guidance and educational materials on the new law and workplace violence prevention. The page notes that “FAQs on the new requirements of SB 553 and other related information” are “coming soon.”
Cal/OSHA’s model WVPP is nineteen pages long and includes the following:
- A brief overview of the new law;
- Directions on drafting the plan;
- The WVPP itself, including definitions for key terms and various sections covering the requirements of the new law; and
- A Violent Incident Log form.
Cal/OSHA also published two fact sheets: one for employers and one for employees. The employer fact sheet is a three-page document that provides an overview of the various requirements for employers under SB 553 (codified as new California Labor Code section 6401.9). Specifically, the employer fact sheet lists the various items employers must include in their WVPP, information that employers must include in their violence incident logs, training topics, additional employer responsibilities, and related regulations. Cal/OSHA also created a Cal/OSHA Workplace Violence Prevention for General Industry (Non-Health Care Settings) webpage that contains much of the same information. The fact sheet for employees explains what constitutes workplace violence and identifies the four types of workplace violence. It also identifies training that employers must provide, explains how employees can help prevent workplace violence, and identifies what rights employees have under the new law.
3. Substantial Customization of the Model WVPP Is Necessary
In some instances, an employer can utilize Cal/OSHA’s model plan without having to add much. However, section 6401.9 requires employers to develop and implement various procedures to respond to and investigate workplace violence incidents, acts, threats, concerns, and emergencies. The type of response and risk of potential exposure to workplace violence can vary by workplace, location, industry, etc. Consequently, the model WVPP contains suggestions, questions, and examples for employers to consider as they assess potential risks in their workplaces. For example, the model WVPP includes a lengthy list of hazards (e.g., whether employees have cash on hand, whether employees are exposed to hostile situations) and potential corrective action (e.g., installation of surveillance systems, controlling access by non-employees). Cal/OSHA notes that an employer’s use of the model WVPP by itself does not ensure compliance with section 6401.9 and that employers are still liable for any violations of section 6401.9 regardless of their use of the model WVPP. In other words, the model WVPP is merely a starting point for employers to build upon, and employers still must identify, add, and implement sufficient procedures themselves.
4. Some Areas of Focus in Cal/OSHA’s WVPP
Notably, the model WVPP asks employers to describe procedures involving employees, specifically: (i) how employees can report concerns or incidents; (ii) how employees will be trained; (iii) how employee compliance will be ensured; (iv) how investigation findings will be delivered to employees; (v) how anything related to workplace violence will be communicated to employees; and (vi) how employees will be rewarded for contributing to making the workplace more secure. Thus, a WVPP that generically addresses the requirements of section 6401.9 without providing any specifics may result in further investigation by Cal/OSHA.
The model WVPP also places a large emphasis on employees’ involvement in developing the WVPP, likely stemming from the law’s requirement that the WVPP include “[e]ffective procedures to obtain the active involvement of employees and authorized employee representatives in developing and implementing the plan, including, but not limited to, through their participation in identifying, evaluating, and correcting workplace violence hazards, in designing and implementing training, and in reporting and investigating workplace violence incidents.” As such, employers should ensure they do not just pay that requirement lip service and actually take some steps to involve employees in the process of developing their WVPP.
5. Main Takeaways
Although California employers still have a few months before section 6401.9 becomes effective, they should begin drafting their WVPP soon if they have not done so already. The model WVPP reflects that the procedures required by section 6401.9 are industry and worksite-specific, and thus an employer’s WVPP will be unique and require some level of attention and customization to ensure compliance. 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.
