Curated Toolkit for the week of 6/10/2024 from Risk Strategies

Frequently Asked Questions about Workplace Violence Prevention in General Industry - (Non- Health Care settings)

Labor Code section 6401.9 (LC 6401.9) (a). Definitions of terms related to workplace violence, applicability as a general industry standard.

1) Q: What is workplace violence in General industry (non-health care settings)?

A: LC 6401.9 (a)(6) defines "Workplace violence" as follows:

(A) Any act of violence or threat of violence that occurs in a place of employment.

(B) "Workplace violence" includes, but is not limited to, the following:

(i) 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.

(ii) An incident involving a threat or use of a fi rearm or other dangerous weapon, including the use of common objects as weapons, regardless of whether the employee sustains an injury.

(iii) The following four workplace violence types:

(I) "Type 1 violence," which means workplace violence committed by a person who has no legitimate business at the worksite, and includes violent acts by any one who enters the workplace or approaches workers with the intent to commit a crime.

(II) "Type 2 violence," which means workplace violence directed at employees by customers, clients, patients, students, inmates, or visitors.

(III) "Type 3 violence," which means workplace violence against an employee by a present or former employee, supervisor, or manager.

(IV) "Type 4 violence," which means 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.

(C) "Workplace violence" does not include lawful acts of self-defense or defense of others.

2) Q: Are animal attacks considered workplace violence?

A: Yes, per LC 6401.9 (a)(A), "Workplace violence" includes any act of violence or threat of violence that occurs in a place of employment. This includes animal attacks.

Further, per LC 6401.9 (d)(2)(G)(v), employers are required to document in their violent incident log whether the type of incident was an animal attack.

LC 6401.9 (b). Employer applicability. Exceptions to specific employers or circumstances.

3) Q: How do I know if my place of employment falls within the requirements of LC 6401.9 or the California Code of Regulations, title 8, section 3342 (CCR T8 3342)?

A: LC 6401.9 applies to all employers, employees, places of employment, and employer-provided housing, except those listed in LC 6401.9 (b)(2)(A) through (F).

4) Q: Are healthcare facilities required to comply with both LC 6401.9 and CCR T8 3342

Violence Prevention in Health Care?

A: No, if a building or location is required to comply with CCR T8 3342 then it is not required to comply with LC 6401.9.

5) Q: Are dogcatchers considered exempt from this law as they are similar to normal law enforcement? Animal control officers might be considered law enforcement in some areas.

A: Only dog-catchers who are part of that are a "department or participating department," asdefined in CCR T11 1001 and that have received confi rmation of compliance with theCommission on Peace Offi cer Standards and Training (POST) Program from the POSTExecutive Director in accordance with CCR T11 1010 would be exempt. As such, dogcatchersthat do not meet the above requirement would not be exempt.

LC 6401.9 (c). Workplace Violence Prevention Plan (WVPP).

6) Q: What are employers required to implement?

A: Employers covered by this section are required to establish, implement, and maintain an effective written WVPP that is specific to the hazards and correction measures for each work area and operation. The plan must be in effect at all times and include the requirements listedin LC 6401.9 (c)(2)(A) through (M).

7) Q: Does the employee-involvement requirement in a company's workplace violence plan also apply to non-union worksites?

A: Yes, the requirements of LC 6401.9 apply to all California employers, employees, places of employment, and employer-provided housing except those covered in LC 6401.9 (b)(2)(A)through (F).

8) Q: Do employers have to include their WVPP in their Injury and Illness Prevention Program

(IIPP)?

A: No, employers can include their written WVPP as a stand-alone section in the written IIPP or maintain it as a separate document.

9) Q: Does Cal/OSHA have a model program that complies with the WVPP requirements of LC6401.9?

A: Cal/OSHA has developed a model written WVPP that provides the essential framework and is intended to help employers establish a separate, stand-alone WVPP. Every employer will need to tailor it to their specific work area or operation.

Note: Use of Cal/OSHA's model written WVPP does not ensure compliance with LC 6401.9.Employers are liable for any violations of LC 6401.9 regardless of use of this model program.

10)

Q: Do employers have to implement a workplace violence reporting system for employees to beable to report potential or actual violent incidents anonymously?

A: No, per LC 6401.9 (c)(2)(f) employers are only required to have a system for communicating with employees on matters relating to occupational safety and health, including provisions designed to encourage employees to inform the employer of hazards at the worksite without fear of reprisal. This could include a system of anonymous notification by employees about hazards.

11) Q: What kind of workplace violence prevention postings does Cal/OSHA recommend employers post in the workplace and where?

A: Employers should ensure that these postings are in a conspicuous place where employees report each day, like common areas, and have easy access to them. For outdoor places of employment, construction, and agricultural sites, this might be in a place where required notices and postings are located and where employees don't have to walk a long distance or ask to see the material.

12) Q: Do employers have to use the WVPP that Cal/OSHA developed?

A: No, employers are not required to use Cal/OSHA's model written WVPP. They may create their own, use another WVPP template, or incorporate their WVPP into their existing IIPP as a separate section.

13) Q: Can our workplace violence plan be added to an IIPP?

A: Yes, employers may include their WVPP into their existing IIPP as a separate section.

14) Q: Does each work location need a dedicated plan, or can an organization use a corporate plan for all sites?

A: Employers are required to ensure that their written WVPP is specific to the hazards and corrective measures for each work area and operation.

15) Q: How can employers make the workplace violence plan accessible to employees?

A: This might depend on the nature of the workplace. Employers could have the plan available in common areas, in a binder, or on their company website. The WVPP needs to be available and easily accessible to employees, authorized employee representatives, and representatives of the Division (Cal/OSHA) at all times.

LC 6401.9 (d). Violent Incident Log.

16) Q: Can employers develop their own Violent Incident Log, or do they have to adopt the log from Cal/OSHA's written model WVPP?

A: Employers may develop their own violent incident log, as long as the information recorded in the log complies with the requirements listed in LC 6401.9 (d)(2).

17) Q: I'm seeking guidance on whether school districts should document all incidents related to special education students in their violent incident logs. Based on our interpretation of LC6401.9, any violent interactions with students would fall under "Type 2 violence". However, we feel that incidents involving special needs students (such as bites, scratches, and hair pulls) are unintentional and therefore should not be tracked, even though they occur regularly. Therefore, are school districts required to include all incidents involving special education students in their violent incident log?

A: In this scenario, regardless of whether the act was intentional or not, this would be categorizedas a "Type 2 Violence" workplace violence incident and the employer is required to record it inthe violent incident log.

LC 6401.9 (e). Training.

18) Q: What should employees do if they don't feel comfortable reporting workplace violence to their employers because they feel they will be retaliated against? Is there someone else they can report potential or actual incidents of workplace violence to?

A: Employees may report potential or actual workplace violence incidents to local law enforcement and/or the local Cal/OSHA enforcement district office.

If you would like to report workplace safety or health hazards to Cal/OSHA, choose one or both of the following:

Call the nearest Cal/OSHA Enforcement District Office to your worksite during normal business hours (8 am to 5 pm Monday through Friday) to fi le a confidential complaint. Cal/OSHA staff can discuss your complaint and answer your questions.

Email the nearest Cal/OSHA Enforcement District Office to your worksite. Cal/OSHA will receive your email during normal business hours and will contact you if there are questions about the complaint.

19) Q: Does LC 6401.9 require employers to provide training to all employees regardless of which state they are in or does this new law only apply in California?

A: With regard to the training requirements of LC 6401.9, employers who have employees working in California are responsible for providing effective training to their employees in California.

Employers who have questions, may contact the Cal/OSHA Consultation Services Branch to receive free technical assistance at (800) 963-9424 or via email at [email protected] .

20) Q: I am unsure of what Cal/OSHA's enforcement interpretation would be for LC 6401.9 training requirement when the plan is first established. Does the training have to be completed before July 1, 2024, or is there a grace period?

A: Per LC 6401.9 (i), the requirements listed in LC 6401.9 (b) to (g) are in effect and enforceable onJuly 1, 2024. This includes the training requirements.

LC 6401.9 (f). Recordkeeping.

21) Q: Are workplace violence incidents also required to be entered on the Log of Work-Related Injuries and Illnesses (Cal/OSHA Form 300)?

A: It depends. All workplace violence incidents are required to be documented in the violent incident log. However, employers are required to record information on the Cal/OSHA Form 300 about every work-related death and work-related injury or illness that involves loss of consciousness, restricted work activity or job transfer, days away from work, or medical treatment beyond first aid, including those as a result of workplace violence. Employers must also record significant work-related injuries and illnesses that are diagnosed by a physician or licensed health care professional. Employers must also record work-related injuries and illnesses that meet any of the specific recording criteria listed in CCR T8 14300.8 through14300.12 .

LC 6401.9 (g). Cal/OSHA Enforcement of LC 6401.9 and LC 6401.9 (i). Effective date. 22)

Q: What is the implementation schedule of the requirements of LC 6401.7 and LC 6401.9?

A: As of September 30, 2023, the LC 6401.7 (a) requires employers to include a workplace violence prevention plan, which must meet the requirements of LC 6401.9, as part of their IIPP.

Per LC 6401.9 (i), the requirements listed in LC 6401.9 (b) through (g) will be in effect and enforceable beginning July 1, 2024.

23) Q: Where can I fi nd the requirements of LC 6401.7 and LC 6401.9?

A: The following links will take you to these labor codes:

LC 6401.7

LC 6401.9

LC 6401.9 (h). Cal/OSHA Workplace Violence Prevention Standard Proposal and Adoption.

24) Q: Will there be an opportunity for public comment during future Cal/OSHA rulemaking on workplace violence?

A: Yes, Cal/OSHA is currently working on a draft title 8 regulation for workplace violence prevention for general industry. The Occupational Safety and Health Standard Board (OSHSB) anticipates having the first advisory meeting on the proposed regulation in the 2nd quarter of 2024.

For information on Division of Occupational Safety and Health advisory committee meetings, visit the Attend an Advisory Meeting webpage.

25) Q: When will Cal/OSHA have a new standard as required by LC 6401.9?

A: The proposed regulation will be posted on the OSHSB webpage for public participation. Cal/OSHA is required to submit its final proposed rule to the OSHSB no later than December 31,2025, and the OSHSB is required to adopt the new standard no later than December 31, 2026.

Visit the OSHSB Proposed Regulations webpage for information on rulemaking proposals scheduled for hearing or adoption.

Additionally, we encourage you to explore our Resource Center, where you can access the webinar slides and other valuable materials related to the CA Workplace Violence Prevention Plan.

Todd LaRue has over 20 years of experience in providing comprehensive and customized employee benefits, human resources consulting, and risk mitigation services to employers of all sizes and industries. His mission is to help employers achieve their long-term strategic goals, enhance their employee engagement, and reduce their operational costs and risks.