People are very aware of the danger of shootings at worksites and on school campuses, which are widely covered by the media, such as the recent attacks at a high school in Santa Clarita, Calif., and at military bases at Pearl Harbor and in Pensacola, Fla. Workplace violence can take many different forms, though, and many incidents never make the news.
In response, California officials are trying to broadly address the problem. Under a draft regulation, employers would need to develop comprehensive workplace violence prevention programs.
The California Division of Occupational Safety and Health (Cal/OSHA) received feedback from several groups and is revising the draft text in an effort to balance all the concerns, according to Eric Berg, Cal/OSHA's deputy chief of research and standards. He said they hope to post the updated proposal within the next few months.
More steps are required to adopt the proposal, and the entire process could take a while. Nevertheless, employment lawyers recommend that companies start working on their plans right away.
The regulation would apply to all California employers, with a few exceptions. It would exempt employers already covered by the health care industry standard for preventing workplace violence. Also, it would exempt law enforcement agencies and the California Department of Corrections and Rehabilitation.
The draft regulation would require several elements:
- A plan to prevent workplace violence.
- A log of violent workplace incidents.
- Training for employees.
- Record-keeping requirements.
The workplace-violence prevention plan would require employers to develop procedures for the following:
- Reporting an incident, threat or other concern.
- Investigating incidents, threats or other concerns.
- Responding to emergencies, including active-shooter threats.
- Identifying and correcting hazards.
Ensuring that workers who report hazards or incidents don't experience retaliation.
It would be a good idea to incorporate this plan into the company's existing injury and illness prevention program, said Jason Mills an attorney with Morgan Lewis in Los Angeles. Though, employers could opt to keep it as a separate document.
Employers would need to record information about incidents, responses, and investigations in a log. According to the draft regulation, it wouldn't include personally identifiable information about the people involved in violent incidents.
Although compiling the log would be time-consuming, it could help employers see patterns they might have missed before, according to Rachel Conn, an attorney with Nixon Peabody in San Francisco. For example, if the log showed several incidents in which someone was attacked near a specific facility, it might highlight the need for extra protection in that location.
There has been some criticism, though. According to an employer coalition, the requirements for the log are "overly detailed and burdensome for most employers while not providing benefit for most employers." The coalition recommends "a minimum standard of recordability" and limiting the log-keeping requirement to high-risk workplaces.
Companies also would need to prepare for possible emergencies involving an active shooter. They would need to develop procedures for alerting workers to any danger, and also for evacuating or sheltering employees.
Some researchers have identified flaws with active-shooter security drills, noting that many schools and workplace shooters are insiders who are familiar with the facility's security procedures. The researchers call for improved mental health services, gun control measures and various other steps. Nevertheless, other experts state that drills can be helpful when used with other security measures.
Nationwide, about 2 million people annually experience workplace violence, according to the U.S. Occupational Safety and Health Administration. Although the public often focuses on mass shootings, many instances of workplace violence don't involve weapons, Berg noted.
Domestic-violence incidents could present themselves in the workplace. Conn cited an example: A worried employee tells the employer about an abusive situation at home, saying the abuser might try to enter the workplace. The employer would need to take such concerns seriously.
Coordination of Laws
Not only would California employers need to comply with the regulation, but they also would need to keep in mind many other related laws, Conn noted, such as:
- The federal Americans with Disabilities Act.
- The California Fair Employment and Housing Act.
- Privacy laws.
- Negligent-hiring, supervision and retention laws.
Employers need to be familiar with all the laws so they can evaluate situations on a case-by-case basis. Say, for instance, an employee tells a manager that a co-worker has a gun and might be a threat. Management would need to determine if there's a risk while also considering privacy protections, according to Conn.
"There's a lot to balance," she observed. "That's why it's going to take a whole team of people to really be able to evaluate the steps an employer is going to want to take."
The employer coalition's view is that low-risk worksites shouldn't have the same requirements as high-risk locations.
"While any act of violence in the workplace is abhorrent, the risk of such acts is minimal in many workplaces," the coalition states.
According to Mills, training would be especially difficult for high-turnover industries, such as hospitality and retail. He said it would involve "a constant state of training all the people coming and going."
The employee-rights group Worksafe supports key elements of the proposal, such as the active-shooter language and the mandate to keep a workplace-violence log. The group sees the log as a central location to track incidents "instead of in personnel files, where they may get lost or become hard to monitor."
Worksafe also recommends some changes to the draft regulation. The group noted that in particular, environmental risk factors, engineering and control measures, worker education, and certain definitions were missing.
Tips for Employers
Even though the regulation is still in draft form, companies should get to work on their plans right away, lawyers emphasize.
Because California employment law is so complex, businesses might need to create a team of multidisciplinary experts, Conn said. The team could include human resources, security experts, attorneys, and forensic psychologists.
"Really putting this into effect is going to take a lot of time and a lot of resources for employers," she said.
By Toni Vranjes December 9, 2019