California OSHA Sets the Bar By Adopting the Strongest Workplace Violence Prevention Standard in the Nation

by BakerHostetler
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Oct. 21, 2016, after nearly two years of meetings and work, the California Division of Occupational Safety and Health Administration (Cal/OSHA) adopted a standard intended to reduce workplace violence against healthcare workers. This is a monumental action by Cal/OSHA for at least three reasons. First, federal OSHA currently has no specific standard governing workplace violence, and it is the first time that a state OSHA agency has adopted a standard addressing the prevention of workplace violence for healthcare facilities. Second, the standard is by far the strictest occupational safety and health regulation in the country governing workplace violence for healthcare workers. And third, the California standard sets an extremely high bar for other state OSHA plans, as well as federal OSHA, when these other agencies consider changes to their respective standards.

It is anticipated that the new standard, which may become effective as early as January, will create serious challenges for employers for a number of reasons. The standard broadly covers “healthcare facilities” leaving room for confusion over what facilities are covered. It also covers “other operations located at a health facility,” without specifying what those might be. Another challenge for employers is that the standard very broadly defines workplace violence, and includes not only any act of violence, but also any threat of violence. It applies to violence perpetrated by patients, visitors, other employees, ex-employees, individuals who had a personal relationship with a worker and non-facility workers. Accordingly, employers will face the challenge of having to implement significant preventive measures.

The standard requires employers to provide safeguards, including the provision of personal protective equipment, training and medical services, at no cost to employees. Yet the standard vaguely states that employers must provide this “at a reasonable time and place for the employee, and during employee’s paid time” without providing any additional guidance. Further, it is not made clear what type of personal protective equipment may be required or for what purpose.

In addition to these major concerns, the standard creates several new requirements, each presenting serious issues for employers. Employers are required to work with employees or their representatives in establishing and annually reviewing a written Workplace Violence Prevention Plan. They also must record information in a comprehensive Violence Incident Log and comply with recordkeeping requirements, which will place heavy administrative burdens on employers. Employers also are required to provide training that addresses workplace violence risks during paid time and pay for any necessary safeguards.

California has set an extreme tone in establishing such a far-reaching workplace safety standard, and federal and other state OSHAs will look to these standards when addressing this issue. Already, representatives from several unions have said they hope the new California standard will become a national model. California employers, as well as employers nationwide, should prepare for tougher workplace violence prevention standards and be ready for the related issues that may arise. Companies may consult a team well-versed in OSHA law that can help evaluate workplace violence prevention plans and additional obligations to ensure compliance with the most current legal developments.

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