Category

Training

” Workplace Violence/Active Shooter Training – What Employers Need to Know”

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On April 12th at 1:00 pm, we will be doing one of our most-attended webinars this year, ” Workplace Violence/Active Shooter Training – What Employers Need to Know”. As you already know, this is a very hot topic and highly litigious area for all employers. For more details, see our website at www.strattonagency.com of contact an HR Representative at 925-556-4404 for more details.

California’s Upcoming Indoor Heat Regulation

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In October 2016, Governor Brown signed and approved Senate Bill 1167 which went into effect on January 1, 2017. The law directs Cal/OSHA to draft and propose heat illness and injury prevention standards for indoor workplaces by January 1, 2019.

Although this law proposes new regulatory activity in this area, it is not new news for California employers. California has an active outdoor workplace heat illness standard since 2006. Moreover, in the past several years Cal/OSHA and other agencies have initiated either training or enforcement to protect workers against indoor heat illness.

In 2012, the Division issued two serious citations and the Appeals Board confirmed the citations to two joint employers for violation of the Injury and Illness Prevention Standard because an employee sustained injuries due to heat illness while working indoors. In its Decision the Appeals Board evaluated several factors including ventilation of the facility, access to water, types of machines and whether they generate heat, whether there is an air condition system, whether the work performed by employees is fast pace, the breaks or recovery periods provided to employees, and whether there is a period of acclimatization provided to employees. National Distribution Center, Cal/OSHA App. 12-R6D2-0391, 12-R6D2-0378, Decision After Reconsideration (Oct. 5, 2015).  The Appeals Board held that it was appropriate for the Division to issue citations to employers for indoor heat illness under the Injury Illness Prevention regulation.

On February 28, 2016, the Division submitted a proposed draft of the language of a new regulation during an advisory meeting. Key take-aways from the Division’s initial thinking include:

  • The regulation would apply to (1) indoor places of employment where the dry bulb temperature exceeds 90 degrees or (2) where employees perform moderate, heavy, or very heavy work and the dry bulb temperature exceeds 80 degrees.
  • The Division would evaluate what type of clothing employees are wearing
  • The Division would evaluate the type of work performed by employees. The Division would critically analyze if employees perform moderate, heavy, or very heavy work to determine whether there is a violation of heat illness.
  • The Division would be more critical of high radiant heat work areas like foundries, brick-firing and ceramic plants, glass factories, vehicle manufacturing plants, rubber manufacturing plants, electrical utility rooms, electric power cogeneration facilities, boiler rooms, industrial scale bakeries, commercial kitchens, industrial scale laundries, food canneries, chemical plants, mining sites, smelters, and steam tunnels.
  • The Division would expect all employers to have a Heat Illness Prevention Plan that specifically identifies Indoor Heat Illness Prevention including procedures to involve employees in developing and implementing the plan, procedures to identify heat hazards, rest and hydration procedures, first-aid and emergency procedures, engineering and administrative control measures used to control indoor heat, and training programs.

Even though the official regulation has not been drafted or implemented, employers are advised to start examining their indoor environments for potential heat stress issues and how their operations may be impacted by an indoor heat stress rule.

Should you have any questions, please contact your HR Specialist at 925-556-4404.

New I-9 Handbook for Employers

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USCIS’s new M-274 “Handbook for Employers with Guidance for Completing Form I-9” is now available.  In addition to detailed I-9 completion instructions, the Handbook contains guidance on Photocopying and Retention, Unlawful Discrimination and Penalties, E-Verify. It also contains FAQs as well as images of sample documents.

The new I-9 Form went into effect on January 22, 2017.  Electronic copies of the English and Spanish versions of Form I-9 are available on the USCIS website or contact your HR Ideas Specialist at 925-556-4404.

Disclosing an Employee’s Medical Condition May Result in an Automatic FMLA Violation

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This employee has a medical condition affecting his genito-urinary system.

Like other employees with a genito-urinary disorder, this employee didn’t want his medical condition broadcast.

In requesting FMLA leave for his condition, the employee submitted medical certification containing “sensitive and detailed” information about the ailment.   Thereafter, the employee claimed:

  • A manager blabbed about the employee’s medical condition at a meeting involving eight other employees (the employee apparently was not present); and
  • Coworkers approached him, asking about the condition and making jokes and obscene gestures about his condition in front of him.

Notably, the employee wasn’t complaining that the employer denied him FMLA leave. In fact, the employee took all the FMLA leave his little heart desired. Rather, the employee argued that his employer violated the FMLA when his managers disclosed his medical condition to those without a need-to-know and when his coworkers ridiculed him for it.

To the court, the issue was a straightforward one. Under the FMLA, confidentiality of medical information is an employee right, and the allegation here is that the employer violated that right. Therefore, even if the employer granted to the employee all the FMLA leave he was entitled, the court found it possible that the employer still “materially affected” the employee’s working conditions when it allegedly breached confidentiality and other employees mocked the employee for his condition.

Insights for Employers

What are the takeaways from this sad case? Let me count the ways:

  1. Need I remind you? Employers, please train your managers about their obligations under the FMLA! Prohibiting disclosure of sensitive medical information must be covered in that FMLA 101 course you should convene every year. When you don’t train, you end up with lawsuits like this one.
  2. While you’re at it, don’t forget anti-harassment training, too.  When you apparently have employees joking about another employee’s medical condition and making obscene gestures in front of him ), you have a problem.
  3. Under what circumstances can medical information be shared with others? In its ADA guidance, the EEOC warns that this information can be shared only for extremely limited purposes:
    •  to supervisors and managers where they need medical information in order to provide a reasonable accommodation
    •  to first aid and safety personnel if an employee would need emergency treatment
    •  to individuals investigating compliance with the ADA and with similar state and local laws
    •  pursuant to worker’s compensation laws (e.g., to a state worker’s compensation office in order to evaluate a claim) or for insurance purposes.

DOT To Add Synthetic Opioids To Its Drug Testing Panel

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Today the U.S. Department of Transportation published a notice of proposed rulemaking in the Federal Register in which it proposes to amend its drug testing program regulation to add four synthetic opioids (hydrocodone, hydromorphone, oxymorphone and oxycodone) to its drug testing panel. DOT also proposes to add methylenedioxyamphetamine (MDA) as an initial test analyte, and remove methylenedioxyethylamphetamine, (MDEA) as a confirmatory test analyte.

DOT explained that it will maintain the current five-panel test, but will change the name of the opiates category to “opioids” and will include the four new synthetic opioid drugs.

DOT also proposes to:

  • add a new provision indicating that only urine specimens are authorized to be used for drug testing under 49 CFR Part 40;
  • revise an existing provision to describe the procedure for discarding an original urine specimen under certain circumstances;
  • adding three new “fatal flaws” to the existing list of four “fatal flaws” currently found in Part 40;
  • remove Part 40 provisions requiring blind specimen testing;
  • add emphasis to an existing Part 40 provision prohibiting DNA testing of urine specimens;
  • add clarification of the term “prescription” during MRO review;
  • remove, modify and add some definitions to clarify the program and make it consistent with the DHHS Mandatory Guidelines, among other things.

The proposed revision of the drug testing panel is intended to harmonize with the revised Mandatory Guidelines established by the U.S. Department of Health and Human Services for federal drug testing programs for urine testing, issued on January 23, 2017.  DHHS has set an effective date of October 1, 2017 for compliance with its final revision.

Tips To Protect Workers In Cold Environments

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Tips To Protect Workers In Cold Environments

Prolonged exposure to freezing or cold temperatures may cause serious health problems such as trench foot, frostbite and hypothermia. In extreme cases, including cold water immersion, exposure can lead to death. Danger signs include uncontrolled shivering, slurred speech, clumsy movements, fatigue and confused behavior. If these signs are observed, call for emergency help.

How to Protect Workers

  • Recognize the environmental and workplace conditions that may be dangerous.
  • Learn the signs and symptoms of cold-induced illnesses and injuries and what to do to help workers.
  • Train workers about cold-induced illnesses and injuries.
  • Encourage workers to wear proper clothing for cold, wet and windy conditions, including layers that can be adjusted to changing conditions.
  • Be sure workers in extreme conditions take a frequent short break in warm dry shelters to allow their bodies to warm up.
  • Try to schedule work for the warmest part of the day.
  • Avoid exhaustion or fatigue because energy is needed to keep muscles warm.
  • Use the buddy system – work in pairs so that one worker can recognize danger signs.
  • Drink warm, sweet beverages (sugar water, sports-type drinks) and avoid drinks with caffeine (coffee, tea, sodas or hot chocolate) or alcohol.
  • Eat warm, high-calorie foods such as hot pasta dishes.
  • Remember, workers face increased risks when they take certain medications, are in poor physical condition or suffer from illnesses such as diabetes, hypertension or cardiovascular disease.

Are You Ready for California’s Workplace Violence Prevention in Health Care Rule?

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By April 1, 2017, all employers in California operating in the following areas will be required to comply with Section 3342, the Workplace Violence Prevention in Health Care rule:  health care facilities; home health care programs; drug treatment programs; emergency medical services; and outpatient medical services to correctional and detention settings.  This rule is far more expansive than Federal OSHA’s guidelines for the Prevention of Workplace Violence in Health Care settings.  Here are some highlights of the new rule:

  • Requires a written workplace violence prevention plan.  This can be incorporated into the Injury Illness Prevention Plan (IIPP) that is currently required in California.  Required elements are:
    • Names or job titles of people responsible for plan implementation;
    • Procedures for the active involvement of employees in developing the plan;
    • Methods for coordinating implementation of the plan with other employers whose employees work in the same facility, service or operation;
    • Procedures for obtaining assistance of law enforcement during all work shifts;
    • Procedures for accepting reports of workplace violence from employees, including anti-retaliation provisions;
    • Procedures to ensure compliance with the plan;
    • Procedures for communicating with employees about workplace violence matters;
    • Procedures for training employees on workplace violence;
    • Assessment procedures to identify risk factors for workplace violence;
      • There are 9 elements under this requirement, some of which may prove difficult, such as the requirement for physical barriers between employees and persons at risk of committing workplace violence – certainly a difficulty when treating patients.  For home health care, there is a requirement for assessment of environmental risk factors as well that could prove very difficult for an employer to implement.
    • Procedures to identify patient specific risk factors, such as:
      • patient’s mental status, medications, history of violence, disruptive or threatening behavior- another potentially difficult portion of the rule for many medical providers who may not have a full history at the time of accepting a patient for treatment or that may have mandated requirements for accepting patients regardless of the patient’s past history.
    • Procedures to correct workplace violence hazards in a timely manner;
      • There 10 elements under this provision.  Some of the themes under this provision relate to staffing levels at the facility.  What is not answered is whether compliance with state regulations related to staffing equates to sufficient staffing levels or what metric would be considered adequate.  Additionally, there is a requirement for security personnel to be specifically present to maintain order and to respond to workplace violence.  What is not clarified is whether these security personnel will be expected to respond to patients who are exhibiting violence or just non-patient violence.
    • Procedures for post-incident response and investigation.
  • Maintenance of a Violent Incident Log – regardless of whether an injury occurs.  This provision specifically requires an employer to NOT maintain certain personal identifying information in such logs, i.e. social security numbers, addresses, telephone numbers, etc.
  • Annual Review of the plan.
  • Training employees annually on the plan.
  • Reporting to the Division (CalOSHA) any use of physical force against an employee regardless of whether an injury occurs.  If there is an injury or use of a weapon, the report must be made within 24 hours.  If there is no injury or use of a weapon, the report must be made within 72 hours.
  • Records to be maintained include:
    • Records of workplace violence hazard identification, evaluation and correction;
    • Training records to be maintained for one year;
    • Records of violent incidents shall be maintained for five years;
    • All of these records shall be given to the Division upon request and to employees and their representatives upon request.

If you should need any assistance or have any questions, please contact your HR Ideas Representative!

Are You Ready for California’s Workplace Violence Prevention in Health Care Rule?

By | HR, OSHA, Private, Public Blogs, Safety, Training | No Comments

By April 1, 2017, all employers in California operating in the following areas will be required to comply with Section 3342, the Workplace Violence Prevention in Health Care rule:  health care facilities; home health care programs; drug treatment programs; emergency medical services; and outpatient medical services to correctional and detention settings.  This rule is far more expansive than Federal OSHA’s guidelines for the Prevention of Workplace Violence in Health Care settings.  Here are some highlights of the new rule:

  • Requires a written workplace violence prevention plan.  This can be incorporated into the Injury Illness Prevention Plan (IIPP) that is currently required in California.  Required elements are:
    • Names or job titles of people responsible for plan implementation;
    • Procedures for the active involvement of employees in developing the plan;
    • Methods for coordinating implementation of the plan with other employers whose employees work in the same facility, service or operation;
    • Procedures for obtaining assistance of law enforcement during all work shifts;
    • Procedures for accepting reports of workplace violence from employees, including anti-retaliation provisions;
    • Procedures to ensure compliance with the plan;
    • Procedures for communicating with employees about workplace violence matters;
    • Procedures for training employees on workplace violence;
    • Assessment procedures to identify risk factors for workplace violence;
      • There are 9 elements under this requirement, some of which may prove difficult, such as the requirement for physical barriers between employees and persons at risk of committing workplace violence – certainly a difficulty when treating patients.  For home health care, there is a requirement for assessment of environmental risk factors as well that could prove very difficult for an employer to implement.
    • Procedures to identify patient specific risk factors, such as:
      • patient’s mental status, medications, history of violence, disruptive or threatening behavior- another potentially difficult portion of the rule for many medical providers who may not have a full history at the time of accepting a patient for treatment or that may have mandated requirements for accepting patients regardless of the patient’s past history.
    • Procedures to correct workplace violence hazards in a timely manner;
      • There 10 elements under this provision.  Some of the themes under this provision relate to staffing levels at the facility.  What is not answered is whether compliance with state regulations related to staffing equates to sufficient staffing levels or what metric would be considered adequate.  Additionally, there is a requirement for security personnel to be specifically present to maintain order and to respond to workplace violence.  What is not clarified is whether these security personnel will be expected to respond to patients who are exhibiting violence or just non-patient violence.
    • Procedures for post-incident response and investigation.
  • Maintenance of a Violent Incident Log – regardless of whether an injury occurs.  This provision specifically requires an employer to NOT maintain certain personal identifying information in such logs, i.e. social security numbers, addresses, telephone numbers, etc.
  • Annual Review of the plan.
  • Training employees annually on the plan.
  • Reporting to the Division (CalOSHA) any use of physical force against an employee regardless of whether an injury occurs.  If there is an injury or use of a weapon, the report must be made within 24 hours.  If there is no injury or use of a weapon, the report must be made within 72 hours.
  • Records to be maintained include:
    • Records of workplace violence hazard identification, evaluation and correction;
    • Training records to be maintained for one year;
    • Records of violent incidents shall be maintained for five years;
    • All of these records shall be given to the Division upon request and to employees and their representatives upon request.

Cal/OSHA Amendment Significantly Expands its Definition of “Repeat” Violations

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Effective January 1, 2017, Cal/OSHA will be utilizing a broader definition of “Repeat” violation under California’s Health and Safety Code.  This is significant for California employers because if Cal/OSHA finds a Repeat violation, the employer could initially be subject to a penalty of up to $70,000, and up to $124,709 or more when Cal/OSHA updates its penalties as required by federal OSHA.  According to OSHA, the purpose of the greater penalty for Repeat violations is to encourage an employer’s ongoing compliance with safety and health standards at all of its locations without requiring OSHA to engage in separate compliance actions at each location.  Because Cal/OSHA has always previously limited Repeat violations to a single worksite reoccurrence, and because of the forthcoming increased penalty structure, California employers will need to develop a more strategic response to any citations they receive.

In its 2013 Federal Annual Monitoring and Evaluation (FAME) Report, federal OSHA found that California’s enforcement of Repeat violations was lower than the federal average and noted that the policy used by the state was different and less protective than that applied by federal law.  As a result, Cal/OSHA was directed to amend California Code of Regulations Title 8, Section 334(d), to be consistent with the definition of a Repeat violation as used by Federal OSHA.

Currently, a Repeat violation is defined in section 334(d), as a violation where an employer has corrected, or indicated correction of, an earlier violation for which a citation was issued and, upon a subsequent inspection within three years, Cal/OSHA finds that the employer has recommitted the same violation.  For employers with fixed establishments, section 334(d) currently limits Cal/OSHA’s authority to issue a repeat citation to the cited establishment, which means that both the underlying and the subsequent violation must have occurred at the same work site or address.

Now, however, California employers will be subject to a much broader definition of Repeat violation.  Specifically, Cal/OSHA amended section 334(d) by:

  1. Expanding the “look back” period of a Repeat violation from three years to five years.
  2. Defining a Repeat violation as a substantially similar violation.
  3. Increasing the geographic scope of a Repeat violation to any violation in the state.

Cal/OSHA Will Now Look Back Five Years

The current three-year look-back period of a Repeat violation begins to run on the date of the conduct giving rise to the violation.  But, if the employer appeals the citation, the appeal prevents the citation from becoming final, and a final citation is necessary for a Repeat violation to be found.  As the three-year clock runs from the date of the conduct, the employer could minimize its chance of a Repeat violation by appealing every citation issued.

Cal/OSHA’s amendment eliminated an employer’s incentive to appeal solely to shorten or exhaust the look-back period.  Now, the starting time for calculating the period begins at either:

  • the date of the final order affirming the existence of a previous violation cited in the underlying citation;
  • the date on which the underlying citation becomes final by operation of law; or
  • the date of final abatement of the violation cited in the underlying citation.

Cal/OSHA also expanded the window of time for a Repeat violation from three years to five years, which is a policy change that federal OSHA made in 2010.1

Cal/OSHA Will Now Consider Substantially Similar Violations

Cal/OSHA currently defines a Repeat violation as occurring when the employer has corrected, or indicated correction of an earlier violation, for which a citation was issued, and upon a later inspection is found to have committed the same violation again.

Cal/OSHA amended the rule to broadly allow it to find a Repeat violation for a violation of a “substantially similar” regulatory requirement. This change places Cal/OSHA directly in line with federal OSHA.  The “substantially similar” standard is the language used by federal OSHA but is not officially defined by Cal/OSHA.  Federal OSHA also does not have a regulatory definition of “substantially similar” but the term has been interpreted in policy documentation and numerous citation appeal decisions.  As the term is undefined, employers will have some opportunity to influence the interpretation of what constitutes substantially similar violations supporting a Repeat violation in California, but this may be one area where the state adopts the federal interpretation.  The greater scope naturally increases the frequency at which a Repeat violation could be issued.

Cal/OSHA Will Now Consider Statewide Violations

The current rule defining the geographic scope of Repeat violations is that the later citation must involve the same factory, store, or other fixed establishment that was previously cited.  But, for field sanitation standards, a Repeat violation is any subsequent violation state-wide, on the theory that farm labor contractors work up and down the state during a short span of time and, thus, violations at different sites in California are akin to Repeat violations.

Cal/OSHA eliminated the difference between field sanitation and other industries and removed the geographical restrictions that currently limit a Repeat violation to a specific facility or store.  In other words, in determining whether to cite the employer for a Repeat violation, Cal/OSHA will consider any violation in the state as opposed to violations at a specific location.  Thus, for example, if Cal/OSHA finds a violation at a facility in Los Angeles, and if the employer has facilities in Sacramento and San Francisco, the agency will determine whether citations for substantially similar violations were issued at the facilities in those two cities.

Implications for Employers

Starting in 2017, California employers can no longer focus solely on the financial implications of settling a citation or contesting it.  Employers will have to be more strategic in their response.  Because the Repeat classification and increased penalties are not directly limited to Serious violations, employers will even have to consider their acceptance or appeal of General and Regulatory citations.

Employers can initially focus even more attention on preventing workplace safety violations through comprehensive programs.  However, if an employer receives a citation, it should carefully evaluate whether simply paying the citation is the best strategy and also should immediately determine whether it is in compliance with other standards that are “substantially similar” to the one for which it was cited at all of its California facilities.  This increased focus will raise the cost of abatement for employers that do decide to accept a citation because they will need to ensure abatement at all of their locations to avoid future Repeat violations with their substantial penalties.  Overall, this change will undoubtedly lead to more litigation over Cal/OSHA citations as employers will need to manage their citation history to avoid future Repeat violations occurring over a five-year period.

Cal/OSHA Adopts First in the Nation Standard on Workplace Violence Prevention for Healthcare Employers

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National research indicates that health care workers are at a substantially higher risk of workplace violence than the average worker in another industry.  According to the federal Occupational Safety and Health Administration (OSHA), from 2002 to 2013, the rate of serious workplace violence incidents (those requiring days off for an injured worker to recuperate) was more than four times greater in healthcare than in private industry on average.1  Patients are the largest source of violence in healthcare settings, followed by visitors or co-workers, and surveys show that many incidents go unreported.

On October 21, 2016, the California Occupational Safety and Health Standards Board (Standards Board) unanimously passed a new General Industry Safety Order entitled “Workplace Violence Prevention in Health Care” (Standard).2  The Office of Administrative Law approved the Standard on December 8, 2016.  The Standard is codified at Section 3342 of Title 8 of the California Code of Regulations.

Coverage

Although Senate Bill 1299 only required a standard for hospitals, the Standards Board went further and the standard applies to any “health facility,” which is defined very broadly to mean “any facility, place, or building that is organized, maintained, and operated for the diagnosis, care, prevention, or treatment of human illness, physical or mental, including convalescence and rehabilitation and including care during and after pregnancy, or for any one or more of these purposes, for one or more persons, to which the persons are admitted for a 24-hour stay or longer.”3

The Standard also applies to home health care and home-based hospices, emergency medical services and medical transports, drug treatment programs and outpatient medical services to those incarcerated in correctional and detention settings.  The Standard will not apply to certain state-run health facilities.

The Standard Broadly Defines “Workplace Violence”

“Workplace violence” means any act of violence or threat of violence that occurs at the work site.  The term workplace violence shall not include lawful acts of self-defense or defense of others.  Workplace violence includes the following:

1.         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;

2.         An incident involving the threat or use of a firearm or other dangerous weapon, including the use of common objects as weapons, regardless of whether the employee sustains an injury;

3.         Four workplace violence types:

  • “Type 1 violence” means workplace violence committed by a person who has no legitimate business at the work site, and includes violent acts by anyone who enters the workplace with the intent to commit a crime.
  • “Type 2 violence” means workplace violence directed at employees by customers, clients, patients, students, inmates, or visitors or other individuals accompanying a patient.
  • “Type 3 violence” means workplace violence against an employee by a present or former employee, supervisor, or manager.
  • “Type 4 violence” means workplace violence committed in the workplace by someone who does not work there, but has or is known to have had a personal relationship with an employee.

Workplace Violence Prevention Plan

Healthcare employers covered by the Standard are now required to establish, implement and maintain an effective workplace violence prevention plan (Plan), which must be in effect at all times and in every unit, service or operation.  The Plan must be in writing, be specific to the hazards and corrective measures for the unit, service, or operation, and be available to employees at all times.  The written Plan may be incorporated into the employer’s written IIPP or maintained as a separate document.

The Plan must include the following:

  • Names or job titles of the persons responsible for implementing the Plan;
  • Effective procedures to obtain the active involvement of employees and their representatives in developing, implementing, and reviewing the Plan, including their participation in identifying, evaluating, and correcting workplace violence hazards, designing and implementing training, and reporting and investigating workplace violence incidents;
  • Methods the employer will use to coordinate implementation of the Plan with other employers whose employees work in the same health care facility, service, or operation, to ensure that those employers and employees understand their respective roles as provided in the Plan;
  • Effective procedures for obtaining assistance from the appropriate law enforcement agency during all work shifts;
  • Effective procedures for the employer to accept and respond to reports of workplace violence and to prohibit retaliation against an employee who makes such a report;
  • Procedures to ensure that supervisory and non-supervisory employees comply with the Plan;
  • Procedures to communicate with employees regarding workplace violence matters;
  • Procedures to develop and provide training to employees that addresses workplace violence risks employees are reasonably anticipated to encounter on the job;
  • Assessment procedures to identify and evaluate environmental and community-based risk factors for each facility, unit, service, or operation, which shall include a review of all workplace violence incidents that occurred in the facility, service, or operation within the previous year, whether or not an injury occurred;
  • Procedures to identify and evaluate patient-specific risk factors and assess visitors or other persons who are not employees;
  • Procedures to correct workplace violence hazards in a timely manner; and
  • Procedures for post-incident response and investigation.

The Standard describes in great detail the procedures that must be addressed within each of these topics.

At least annually, the employer is required to review the effectiveness of the Plan and correct any problems.  The annual review must include employees and their representatives and address the employees’ respective work areas, services and operations.  The Standard sets out numerous additional items the employer must consider when reviewing the Plan, including, among other things, staffing, sufficiency of security systems and job design and equipment.

Violent Incident Log

Healthcare employers will be required to record in a “violent incident log” every incident, post-incident response, and workplace violence injury investigation with descriptive details.  The employer must review the log as part of its annual review of the Plan.

The log must contain, at a minimum, the following items:

  • The date, time, specific location, and department of the incident;
  • A detailed description of the incident;
  • A classification of who committed the violence;
  • A classification of circumstances at the time of the incident;
  • A classification of where the incident occurred;
  • The type of incident;
  • The consequences of the incident; and
  • Contact and other information about the person completing the log.

As with the Plan, the Standard describes in the detail the specific information that must be included for each item.

Training

The Standard requires healthcare employers to provide training to employees designed to address the workplace violence risks that employees are reasonably anticipated to encounter in their jobs.  The employer must have an effective procedure for obtaining the active involvement of employees and their representatives in developing training curricula and training materials, participating in training sessions, and reviewing and revising the training program.

The Standard requires that training be conducted at various times, including:

  • when the Plan is first established and when an employee is newly hired or newly assigned to perform duties for which the training was not previously provided;
  • when new equipment or work practices are introduced; and
  • when a new or previously unrecognized workplace violence hazard has been identified.

The Standard requires the initial training to address the workplace violence hazards identified in the facility, unit, service or operation, and the corrective measures the employer has implemented.  The initial training also must include:

  • An explanation of the employer’s Plan, including the employer’s hazard identification and evaluation procedures, general and personal safety measures the employer has implemented, how the employee may communicate concerns about workplace violence without fear of reprisal, how the employer will address workplace violence incidents, and how the employee can participate in reviewing and revising the Plan;
  • How to recognize the potential for violence, factors contributing to the escalation of violence and how to counteract them, and when and how to seek assistance to prevent or respond to violence;
  • Strategies to avoid physical harm;
  • How to recognize alerts, alarms, or other warnings about emergency conditions such as mass casualty threats and how to use identified escape routes or locations for sheltering, as applicable;
  • The role of private security personnel, if any;
  • How to report violent incidents to law enforcement;
  • Any resources available to employees for coping with incidents of violence, including, but not limited to, critical incident stress debriefing or employee assistance programs; and
  • An opportunity for interactive questions and answers with a person knowledgeable about the employer’s workplace violence prevention plan.

Annual refresher training also is required for employees performing patient contact activities as well as their supervisors.

In addition, employees assigned to respond to alarms or other notifications of violent incidents or whose assignments involve confronting or controlling persons exhibiting aggressive or violent behavior must be provided training on numerous topics prior to initial assignment and at least annually thereafter, including strategies to prevent physical harm, aggression violence predicting factors and characteristics of aggressive and violent patients and victims.

Reporting Requirements for Certain Hospitals

In addition to the above requirements, the Standard requires general acute care hospitals, acute psychiatric hospitals, and special hospitals to report to Cal/OSHA any incident involving either of the following:

  • The use of physical force against an employee by a patient or a person accompanying a patient that results in, or has a high likelihood of resulting in, injury, psychological trauma, or stress, regardless of whether the employee sustains an injury (as that term is defined in Cal/OSHA’s regulations requiring the reporting of other types of injuries or illnesses).
  • An incident involving the use of a firearm or other dangerous weapon, regardless of whether an employee sustains an injury.

All reports must be made within 72 hours, except that the report must be made within 24 hours if the incident:

  • results in a fatality or an injury that requires inpatient hospitalization for at least 24 hours for other than medial observation or in which an employee suffers a loss of a limb or suffers any serious degree of permanent disfigurement;
  • involves the use of a firearm or other dangerous weapon; or
  • presents an urgent or emergent threat to the welfare, health, or safety of hospital personnel, which means that hospital personnel are exposed to a realistic possibility of death or serious physical harm.

The Standard describes the information that must be included in the report.  Cal/OSHA will implement an online system for employers to report the information.  These reports do not relieve the healthcare employer from making reports that may be required by other Cal/OSHA regulations.  Employers can expect that these reports will result in a significant number of new non-formal and on-site inspections.

Recordkeeping

The Standard will require healthcare employers to maintain various records, including records of workplace violence hazard identification, evaluation, and correction, training records, and records of violent incidents.  Records must be made available to employees and their representatives, as well as Cal/OSHA, upon request.

Next Steps for Employers

The Standard is effective on April 1, 2017, which means that California healthcare employers have less than four months to get in full compliance with these onerous requirements.  Cal/OSHA’s Standard is a first of its kind at the federal and state level, although Federal OSHA is proceeding with a rulemaking and will hold a public hearing on January 10, 2017.

At a minimum, employers covered by the Standard should immediately consider:

  • Gathering records of all incidents of workplace violence (with or without injury) from the previous year;
  • Reviewing all existing policies, programs, and training addressing elements of workplace violence prevention;
  • Conducting the required assessments for each workplace;
  • Drafting and implementing a new written Workplace Violence Prevention Plan, which addresses the numerous topics enumerated in the Standard;
  • Creating training programs for all employees that effectively advise of any workplace violence risks that may arise in a healthcare environment and in the employees’ particular work area; and
  • Establishing a record retention program for training and any incident that could be viewed as an incident of workplace violence, even if no injury resulted.

Employers should also review the significant privacy issues raised by the Standard, and with the advice of privacy attorneys, develop an appropriate policy addressing concerns which may arise in keeping records, reporting incidents to Cal-OSHA, and handling inspections of this Standard.

Should you have any questions, please contact your representative at HR Ideas.