California’s new workplace violence prevention mandate: What employers should know

Beginning July 1, 2024, virtually every employer in California must adhere to the new workplace violence prevention requirements introduced by Senate Bill 553 (SB 553). Under SB 553, codified in Labor Code Section 6401.9, covered employers must maintain a workplace violence prevention plan (WVPP), either as a stand-alone plan or built into an existing injury and illness prevention plan (IIPP). Employers will also be required to implement and train employees on the WVPP by the July 1 deadline. Employers are advised to start taking steps towards compliance.

In October 2016, the California Division of Occupational Safety and Health (Cal/OSHA) adopted a workplace violence standard specific to the healthcare industry. With the passage of SB 553, the legislature has codified a less onerous standard for employers across all industries. Cal/OSHA is still tasked with enforcing SB 553 beginning July 1, but may later build upon it and add further requirements.

Who is considered a “covered employer”?

The new requirements apply to all California employers, except that they do not cover 1) places of employment where there are less than 10 employees working at any given time and the site is not open to the public, 2) employees teleworking from a location of the employee’s choice which is not controlled by the employer, 3) health care facilities, and 4) law enforcement facilities and facilities operated by the Department of Corrections.

What is “workplace violence”?

Labor Code Section 6401.9 defines workplace violence as “any act of violence or threat of violence that occurs in a place of employment,” but does not include lawful acts of self-defense or defense of others. Workplace violence specifically includes, but is not limited to, the following:

• 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
• An incident involving a 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, and
• Any of the following four types of workplace violence:

1. Type 1 violence: workplace violence committed by a person who has no legitimate business at the worksite, and includes violent acts by anyone who enters the workplace or approaches employees with the intent to commit a crime.
2. Type 2 violence: workplace violence directed at employees by customers, clients, patients, students, inmates, or visitors.
3. Type 3 violence: workplace violence against an employee by a present or former employee, supervisor, or manager.
4. Type 4 violence: workplace 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.

Requirements for a WVPP

The WVPP must be a written plan made available to employees with clear identification of who is responsible for its administration. The WVPP must include effective procedures for:

• Obtaining the active involvement of the employees in developing and implementing the plan
• Coordinating and training the plan with other employers and all employees
• Reporting incidents of workplace violence and maintaining a Violent Incident Log
• Responding to and investigating incidents of workplace violence
• Identifying, evaluating, and correcting hazards
• Reviewing the plan either annually, after an incident, or when a deficiency is observed
• Communication of the plan to employees
• Compliance with the law, and
• Other “necessary and appropriate” procedures required by Cal/OSHA.

Drafting an effective WVPP

Cal/OSHA has created a model WVPP that an employer could adopt as a stand-alone plan. However, the template is dense, and reflects more detailed programming than is required. The Cal/OSHA model WVPP will also not be tailored to any one employer’s needs or worksite(s), and it is not guaranteed to harmonize with existing injury and illness prevention plans. Therefore, although some employers may simply adopt the Cal/OSHA model WVPP wholesale, it may not be the optimal course of action for every employer.

The WVPP will likely be drafted as part of the employer’s existing IIPP (as long as the employer is also a “covered employer” pursuant to Labor Code Section 6401.7). This is likely the easiest strategy for employers to administer, as the WVPP and IIPP have similar training, notice, and review requirements. Employees may receive a single document covering both the WVPP and IIPP, and certain forms and recordkeeping methods may be implemented across both plans.

If employers prefer a standalone WVPP, they can either begin with the Cal/OSHA model WVPP and alter it to meet their specific needs, or consult with counsel to create a new, stand-alone written WVPP. In doing so, the employer is able to oversee the drafting of the WVPP from the beginning. They may decide what to include beyond the requirements, how to administer it in a manner similar to or different from the IIPP, and what must be tailored to best address the particularities of the employer’s worksites.

Training requirements

Employers are required to train employees on the WVPP when the program is first established, and then every year thereafter. Employers must also train new employees and all employees given a new job assignment that may introduce employees to new hazards, processes, or procedures. Employers will be required to keep records of steps taken to implement and maintain the program, including training. Training should be provided using vocabulary and content tailored to the education level, literacy, and language of the employees. The training must include the following components:

• The employer’s plan, how to obtain a copy, and how to participate in development and implementation of the WVPP
• The definition of workplace violence and requirements of Labor Code Section 6401.9
• How to report workplace violence incidents to the employer or law enforcement
• Workplace violence hazards specific to the employer’s industry, corrective measures the employer has implemented, and strategies on how to prevent or respond to violence
• The violence log required by the Labor Code and how to obtain a copy, and
• An opportunity for interactive questions with a person knowledgeable about the plan.

What are the potential penalties for failure to comply?

California is the first state to implement an industry-agnostic workplace violence requirement. Failure to comply with the requirements may subject employers to penalties of up to $25,000 for serious violations, and up to $158,727 for “willful” violations. California employers are advised to develop and implement ahead of the July 1, 2024 effective date a WVPP that complies with the law, and that best addresses the safety risks and concerns employees face at their worksites.

For more information, please contact any of the authors.