California has long been at the forefront of passing occupational safety and health regulations that do not exist at the federal level. (Photo: Shutterstock)

In the wake of recent mass shootings in Gilroy, El Paso, and Dayton, national attention has turned its focus yet again to the highly charged debate over gun control, mental health and terrorism. These attacks happened not only in places open to the public (a festival, a large-chain retailer, and a bar), but also places where people work. While the country struggles to address seemingly random violence in public spaces, these areas are workplaces too. California is responding with workplace violence regulations for every employer in the state.

In the last few years, California's response has been to push through laws and regulations aimed at preventing workplace violence of all types, including "active shooter" incidents. The most recent set of proposed regulations, which could become final as early as later this year, is holistic and requires an interdisciplinary approach and a true partnership between workers and employers. As a result, it also will require significant resources dedicated to training, prevention, emergency response, and record keeping. These California regulations are set to be a model for similar laws in states across the country as well as under the federal Occupational Safety and Health Act.

California's workplace violence prevention standards

California has been grappling with workplace violence prevention for years. In 2014, California adopted Labor Code Section 6401.8, requiring the California Occupational Safety and Health Standards Board ("the Standards Board") to prepare and adopt a regulation for workplace violence preparation, prevention, and response in the health care industry. That same year, the Standards Board received a petition for a workplace violence prevention standard for all schools.

In granting the petition, the Standards Board found that "because of the difficulty in defining the scope of any workplace violence regulation, one standard should be developed to address all workplaces in California." In April 2017, the Standards Board adopted the workplace violence prevention standard for the health care industry. Although workers in the health care industry have been susceptible to violence from patients, particularly those with mental health issues, many health care employers felt that some of the requirements were unclear, onerous, and/or impractical.

Cal/OSHA's proposed workplace violence prevention standard for general industry

Now, California is in the process of finalizing a workplace violence regulation for all industries and all employers in the state. Despite the difficulties with implementing the health care industry standard, Cal/OSHA has used that standard as a model for drafting the general industry standard, the latest draft of which was released in October 2018. While the current draft has been scaled back from the health care standard, many of the problems are still present.

While still subject to further revision, the most recent draft includes the following primary components for workplace violence prevention programs:

• A written workplace violence prevention plan containing various elements (unlike the Injury and Illness Prevention Program (IIPP) standard, there is no exception for small employers). Some of the elements mirror the requirements of the IIPP standard (identifying, evaluating, and investigating hazards; employee communication; and procedures for reporting concerns). The proposed regulations, however, also include additional requirements like addressing methods that an employer should use to implement the plan in conjunction with other employers on multi-employer worksites, as well as procedures to respond to workplace violence emergencies, including active shooter threats. Further, the plan must be reviewed periodically and after any workplace violence incident that results in an injury.

• A violent incident log, which must describe in detail each and every incident, post-incident response, and workplace violence injury investigation.

• Implementation of a comprehensive training program and various other record-keeping requirements.

In July 2019, the Standards Board announced that revisions to the draft are underway and that a new draft is expected in October 2019. There has been no announcement yet regarding whether the Standards Board will seek additional comments or simply begin the rule-making package. In addition, a standardized regulatory impact analysis still needs to be conducted.

For employers, proper implementation and compliance will take significant time and resources, and will involve more than merely drafting a policy. Many employers already have begun to take steps to implement such programs, which by their very nature should not be boilerplate. Every employer and every worksite will have different concerns and considerations regarding workplace safety, so it is imperative to tailor these programs to the specific dangers for a particular employer and/or worksite. These regulations will require particularized and sufficient training for management and their employees on such risks, and significant documentation of that training as well as various phases of implementation.

Employers also should be prepared to enlist a multi-disciplinary team including, potentially, outside experts (e.g., security, workplace psychology experts, threat assessment consultants, etc.) and promote open lines of communication with law enforcement. Employers should encourage employees to participate in this process, and where there is a collective bargaining agreement in effect, negotiations with the applicable union(s) over the terms, or at least the effects, of the new program may be necessary.

Employers also will need legal expertise not only to ensure compliance, but also to help them navigate others potential laws that may be affected by workplace violence, such as:

• Workers' compensation laws
• Privacy laws
• The Americans with Disabilities Act (ADA) and related state laws
• Premises liability
• Negligent hire, supervision, and retention
• Accommodation for domestic violence and victims
• Privilege and confidentiality
• Temporary restraining orders (TRO) and injunctions

Workplace violence prevention regulation outside of California

California has long been at the forefront of passing occupational safety and health regulations that do not exist at the federal level. Currently, no specific workplace violence prevention regulation exists. Recently, however, in a landmark decision in Secretary of Labor v. Integra Health Management, No. 13-1124 (OSHRC, Mar. 4, 2019), the Federal Occupational Safety and Health Review Commission (OSHRC) affirmed an administrative law judge's decision that an employer could be cited under Section 5(a)(1) of the Occupational Safety and Health Act (OSHA), also commonly known as the General Duty Clause, for third-party violent acts against employees.

Although the Commission upheld the decision, two of the commissioners wrote concurrences attempting to limit the decision to the specific facts of the case, and cautioned that this may be a case where "bad facts create bad law." The case involved an employer providing in-home services to clients, some of whom had mental health issues and violent histories, and an employee was stabbed to death by a schizophrenic, ex-con client during a home visit. It has yet to be seen if Fed/OSHA will expand the use of the General Duty Clause outside of the specific facts of Integra, but employers should be mindful that Fed/OSHA does have a track record of adopting California's standards. In fact, there have been efforts by both the U.S. Labor Department and Congress to regulate workplace violence in the health care industry.

Although no other state has gone as far as California in pushing an industry specific or general industry regulation, other states have taken a piecemeal approach to regulating certain types of workplace violence. For example, a new decision from the Illinois Court of Appeals recently held that an employer may be liable for gender-based workplace violence under the Illinois Gender Violence Act (740 ILCS 82). Further, many states have enacted "anti-bullying" statutes that are meant to address abuse in the workplace as well as statutes requiring accommodations for domestic abuse victims. Finally, common law tort claims for the negligent hire, supervision, and retention of dangerous employees also exist in many states.

What can employers do to prepare?

While California continues to wait for the finalization of the general industry standard, all employers can take the following steps to prepare a written workplace violence prevention plan and program or improve the one already in place:

• Assemble a development team consisting of management representatives from a variety of implicated departments such as Human Resources, Safety and Health, Security, Loss Prevention, and/or Risk Management. It is important that this be a multi-disciplinary effort that also promotes and encourages participation by employees to report suspicious or concerning behavior.

• Have legal counsel (either internal, external, or both) assigned to the development team.

• Train that development team and managers on risk factors for workplace violence and ways to prevent such incidents.

• Create open and confidential communication lines of reporting suspicious or threatening behavior, and provide access to those reporting methods, not just to your managers and employees but also to third-party contractors and the general public that may visit the worksite.

• Review and evaluate current policies. Many employers already have policies against the possession of weapons at worksites, harassment, and workplace violence, but they nonetheless should conduct a careful review of these policies and determine what, if any, additional policies and procedures are required by the new regulations.

• Collect and review reports of any prior workplace violence events, threats of violence, and employee reports of workplace violence or threat concerns at the company in the last five years. This review can help determine the nature and frequency of the threats facing employers.

• Following this review, the development team should put together a list of where the team believes the company faces: (i) the most serious risks of workplace violence, and (ii) the largest number of potential workplace violence events.

As California waits to see when (not if) these workplace regulations will become effective and in what specific form, California employers should take steps now to prepare for them. They also should consider whether and how they can implement such programs nationwide given the trend across the country. This is a complicated problem with no quick-fix, boilerplate solution, and employers should not procrastinate in taking steps to protect their workplaces.

Benjamin J. Kim is a Los Angeles-based partner in Nixon Peabody's Labor & Employment group and co-chairs the firm's Occupational Safety & Health (OSHA) practice. He represents clients in a range of industries in employment and labor matters in both federal and state court litigation. He also counsels employers on a wide variety of employment issues.

Rachel L. Conn is a San Francisco-based Nixon Peabody associate, also part of the firm's Labor & Employment group and a member of the firm's Occupational Safety & Health (OSHA) practice. She represents clients in both federal and state court litigation and before administrative agencies as well as providing labor and employment law advice and training, with a particular emphasis on occupational safety and health compliance and litigation.

Read more: 

• The value of a proactive approach to domestic violence
• Mediating highly emotional workplace disputes
• 3 ways to improve your active shooter preparedness and response capabilities