Last year, California enacted new legislation (SB 553, codified under California Labor Code Section 6401.9) requiring employers to create and maintain a workplace violence prevention plan (WVPP) and train their employees on their WVPP. As a practical matter, this law will affect nearly every California employer, with very limited exceptions, such as places of employment where fewer than 10 employees are working at any given time and the location is not accessible by the public, and employees teleworking from a location of their choice outside the employer’s control. With just a few weeks until these requirements become effective, employers should take steps to comply by creating, implementing, and training employees on a worksite-specific WVPP.
“Workplace violence” under the new legislation includes a wide group of behaviors beyond physical altercations or workplace shootings. Under SB 553, workplace violence includes “any act of violence or threat of violence that occurs in a place of employment.” The legislation identifies four categories of workplace violence:
- Type 1: Workplace violence committed by a person who has no legitimate business at the worksite; includes violent acts by anyone who enters the workplace or approaches workers with the intent to commit a crime.
- Type 2: Workplace violence directed at employees by customers, clients, patients, students, inmates, or visitors.
- Type 3: Workplace violence against an employee by a present or former employee, supervisor, or manager.
- Type 4: 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.
Under the new law, covered employers must conduct an initial assessment and evaluation of the risk factors and hazards that have been shown to, or may, contribute to the risk of workplace violence and have a thorough understanding of such risk factors and/or hazards specific to their workplace. Employers must then draft, implement, and maintain a WVPP, as well as train their employees on their plan at least annually, with an initial deadline of July 1, 2024.
The WVPP may be included as a standalone section in an employer’s written injury and illness prevention program. It must include the following general elements:
- The names and positions/titles of persons responsible for implementing the written WVPP, as well as a description of their responsibilities
- Procedures to obtain the active involvement of employees in developing and implementing the WVPP
- Methods the employer will use to coordinate implementation of the plan with other employers
- Procedures to ensure that all employees comply with the WVPP
- Procedures to communicate with, and provide training to, employees on workplace violence matters by July 1, 2024, and annually thereafter (but also whenever a deficiency in the plan is observed or becomes apparent, or following a workplace violence incident)
- Procedures to identify, evaluate, and correct workplace violence hazards in a timely manner
- Procedures for the employer to accept and respond to reports of actual or potential workplace violence, including procedures to prohibit retaliation against employees for reporting workplace violence
- Procedures on how to respond to actual or potential workplace violence emergencies (such as alert systems and evacuation plans)
- Procedures for the employer’s post-incident response and investigation of the workplace violence incident
- Procedures to review and revise the WVPP for effectiveness
Once an employer has developed its WVPP, it must train employees on all of the following, and it must also provide an opportunity for interactive questions and answers as part of the training:
- The WVPP itself, how to get a copy of the plan, and how to participate in developing and implementing the plan
- The meaning of workplace violence, the different types of workplace violence, and the employer’s obligations under SB 553
- How to report workplace violence incidents or concerns to the employer or law enforcement without fear of retaliation
- Workplace violence hazards specific to the job, corrective measures the employer has implemented, how to seek assistance to prevent or respond to violence, and strategies to avoid physical harm
- The employer’s violent incident log
In addition, employers must keep the following records and make them available for examination by the Division of Occupational Safety and Health, as well as employees or their representatives:
- Records of workplace violence hazard identification, evaluation, and correction, for a minimum of five years
- Workplace violence prevention plan training records, for a minimum of one year
- Violence incident logs, for a minimum of five years
- Records of workplace violence incident investigations, for a minimum of five years
- Cal/OSHA Form 300, for five years
While the state does provide a model plan,1a factsheet,2and FAQs,3because WVPPs must be “specific to the hazards and corrective measures for each work area and operation,” California employers need to take a hands-on approach, using the model plan as a potential starting point, in developing a WVPP that is tailored to their own worksite and business operations.
Under SB 533, Cal/OSHA has the authority to enforce the new law by issuing citations and civil penalties. Given the potential consequences of noncompliance, employers must be proactive in developing and implementing a WVPP and training their workforce.
Employers should work with counsel to develop a strategy for complying with SB 553 now and on an ongoing basis, which may include revisiting and updating the WVPP periodically (especially when the physical workspace changes), considering which external expert resources may be needed to provide appropriate training, and ensuring that any workplace violence investigations are conducted promptly and thoroughly and that they are properly documented.
Wilson Sonsini’s employment and trade secrets litigation practice is available to assist in advising and counseling on compliance strategies and will be actively monitoring any further developments. For any questions, please contactMarina Tsatalis,Jason Storck,Matt Gorman,Aren Balabanian,JeAnne Reyes, or any other member of the firm’semployment and trade secrets litigationpractice.
[1] https://www.dir.ca.gov/dosh/dosh_publications/Model-WPV-Plan-General-Industry.docx; or https://www.dir.ca.gov/dosh/Workplace-Violence/General-Industry.html.
[2] https://www.dir.ca.gov/dosh/dosh_publications/WPV-General-Industry-for-employers-fs.pdf.
[3] https://www.dir.ca.gov/dosh/Workplace-Violence/FAQ.html.
