Seyfarth Synopsis: Senate Bill 553, signed into law by Governor Gavin Newsom, requires nearly all employers in the State of California to prepare a Workplace Violence Prevention Plan, train employees on how to identify and avoid workplace violence, and maintain a violent incident log by July 1, 2024.
Governor Newsom has signed SB 553, a first of its kind workplace violence prevention law, which requires nearly all California employers to create, adopt, and implement written Workplace Violence Prevention Plans that include numerous elements, annual workplace violence prevention training, violent incident logs, and the creation and retention of various records.
Interestingly, the Division of Occupational Safety and Health (Cal/OSHA) in collaboration with various stakeholders has been working on a general industry workplace violence standard since 2017. Now, SB 553 requires the Division to start enforcing new workplace violence requirements that are largely modeled on Cal/OSHA’s existing draft standard. Under the new law, the Cal/OSHA Standards Board is required to adopt workplace violence standards codifying SB 553 no later than December 31, 2025. But regulations or not, Cal/OSHA is empowered and directed to start enforcing SB 553 on July 1, 2024.
Who is Covered?
The requirement for a Workplace Violence Prevention Plan applies to all employers and employees in the State, with a few limited exceptions:
- Employers already covered by Cal/OSHA’s Violence Prevention in Health Care standard
- Employees who telework from a location of their choosing that’s outside the control of the employer
- Locations not open to the public where fewer than 10 employees work at a given time
- Department of Corrections and Rehabilitation and law enforcement agencies
Defining “Workplace Violence”
“Workplace violence” is defined broadly as any act of violence or threat of violence that occurs in a place of employment. The law also defines 4 specific types of workplace violence.
The definition includes, for example, verbal and written threats of violence and incidents involving use of firearm or dangerous weapon regardless of whether an employee sustains an injury.
However, the definition also captures acts that some might think waters down the meaning of workplace violence, such as a threat 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. This means there’s no “reasonable person” test; the definition is subjective. A seemingly innocuous comment to some might be considered workplace violence based on the perception of an employee.
What Must be Included in a Workplace Violence Prevention Plan?
Workplace Violence Prevention Plans must be in writing and easily accessible by employees. The Plans can be included as a stand-alone section within an existing injury and illness prevention plan (IIPP) or they can be maintained as a separate document.
Along with identifying the individuals responsible for implementing the Plan, a Plan must include the following procedures for:
- Involving employees in the development and implementation of the Plan
- Coordinating implementation of the Plan and training with other employers such as staffing agencies.
- Accepting and responding to reports of workplace violence, and prohibiting retaliation against reporting employees
- Ensuring employees comply with the Plan
- Communicating with employees about: (1) how to report violent incidents, threats, or workplace violence concerns to employer or law enforcement and (2) how concerns will be investigated and results communicated
- Responding to actual and potential workplace violence emergencies
- Identifying and evaluating workplace violence hazards
- Post incident response and investigation
- Reviewing Plan effectiveness annually, when deficiency is apparent, or after a workplace violence incident
SB 553 also requires employee training. Employers must provide employees with initial training when the Plan is first established and continue to conduct annual trainings thereafter. Training needs to cover the following topics:
- The employer’s Plan and how employees can obtain a free copy of the Plan
- How to report workplace violence hazards and workplace violence incidents
- Corrective measures the employer has implemented
- How to seek assistance to prevent or respond to violence
- Strategies to avoid physical harm
- Information about the violent incident log and how employees can obtain a copy
Additional training is required when new or previously unrecognized workplace violence hazards are identified, or when there are changes to the Plan.
Employers must retain training records for at least 1 year.
Recording and Reporting Requirements
Employers are required to record every workplace violence incident in a violent incident log including:
- Date, time, and location of the incident
- Detailed description of the incident
- Classification of who committed the violence
- The violence type including whether it was a physical attack or threat, whether weapons or other objects were involved, or whether it was a sexual assault
- Consequences of the incident including whether security or law enforcement was contacted and whether actions were taken to protect employees from a continuing threat
Employers must retain the log for 5 years and omit personal identifying information. Employees are entitled to view and copy the log within 15 calendar days of a request.
Other Recordkeeping Requirements
Unlike the IIPP standard, which has a 1-year retention period for records of implementation, SB 553 has a lengthy 5-year retention requirement for workplace violence hazard identification, evaluation, and correction records. Records of workplace violence incident investigations (which may not include medical information) are also subject to the 5-year retention requirement.
Changes to Existing Rules On Seeking Temporary Restraining Orders on Behalf of Employees
Finally, SB 553 changes California’s Code of Civil Procedure by adding several employee-friendly protections to the process by which employers may petition for temporary restraining orders (TROs) and orders after hearings (i.e. restraining orders that are often in place for three or more years) on behalf of employees.
California Code of Civil Procedure Section 527.8 previously allowed employers to petition for a Workplace Violence TRO on behalf of their employees who had “suffered unlawful violence or a credible threat of violence from any individual, that can reasonably be construed to be carried out or to have been carried out at the workplace” to seek protection from an individual; often a former employee or member of the public who is violent and/or threatening the employee at their workplace. This was a helpful, albeit limited, remedy for employers seeking to protect the workplace.
SB 553 expands Section 527.8 and authorizes collective bargaining representatives, not just employers, to petition for TROs on behalf of employees, allowing even more relief for employees faced with threats and violence. SB 553 also provides for employee names to be withheld from the TRO papers, providing anonymity for victims who otherwise might have hesitated on supporting a TRO for fear of retaliation from the individual at issue.
SB 553 also expands upon the actionable conduct necessary to give rise to a TRO and amends Section 527.8 to allow employers to seek a TRO on behalf of their employee where the employee suffers harassment––and not simply violence or threats of violence.
Will Cal/OSHA Publish A Model Program?
Cal/OSHA frequently creates model programs, and using them has benefits: they’re easy to use, and, if completed correctly and implemented properly, they pass muster during a Cal/OSHA inspection. While Cal/OSHA hasn’t yet said whether they plan to publish a model Workplace Violence Prevent Plan program, the chances are high that they will.
Employers should reach out to the authors or your favorite Seyfarth attorney to strategize about how to create and roll out compliant Plans, modify existing policies to conform to the new SB 553 requirements before July 1, 2024.