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California Workplace Violence Safety Order For Healthcare Workers to Take Effect on April 1

The California Division of Occupational Safety & Health Standards Board recently passed a new safety order intended to protect healthcare workers from workplace violence. The new safety order, which the California Office of Administrative Law approved on December 8, 2016, will require healthcare providers to develop workplace violence prevention plans, institute training programs, and keep records on certain incidents of workplace violence.

The new General Industry Safety Order, entitled “Workplace Violence Prevention in Health care” and codified at the California Code of Regulations, Title 8, Section 3342, will become effective on April 1, 2017. For more information, see the complete text for Section 3342.

Note for Non-Medical, Noncovered Employers

One important consideration for non-medical employers is that Cal/OSHA is currently underway on a rulemaking on a similar workplace violence regulation that is expected to apply to all workplaces in California.

Background

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. 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). 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.

Covered Employers Under the New Standard

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.”

The new safety order also applies to the following types of healthcare facilities:

  • Outpatient medical offices and clinics
  • Home health care and home-based hospice
  • Paramedic and emergency medical services, including paramedic and emergency services provided by firefighters and other emergency responders
  • Field operations such as mobile clinics and dispensing operations, medical outreach services, and other off-site operations
  • Drug treatment programs
  • Ancillary healthcare operations

According to the new safety order, different facilities must comply with different provisions of the new law. For example, general acute care hospitals, acute psychiatric hospitals, and special hospitals must comply with all the provisions with which health facilities must comply—and, in addition, must report incidents to the California Division of Occupational Safety and Health (Cal/OSHA) of the Department of Industrial Relations.

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

The new safety order requires every covered employer—as part of its Injury and Illness Prevention Program (IIPP)—to “implement and maintain an effective workplace violence prevention plan.” The new safety order specifies the following requirements:

  • The plan must be in writing.
  • It must be in effect at all times.
  • The plan must be in effect in every unit, service, and operation.
  • Plans must be “specific to the hazards and corrective measures for the unit, service, or operation.”
  • The plan must be available to employees at all times.

Employers have the option to incorporate the plan into their written IIPPs or maintain a separate violence prevention plan.

To comply with the safety order, the workplace violence protection plan must include the following elements, among others:

  1. The names or job titles of the persons responsible for implementing the plan
  2. Procedures to involve employees and their representatives, in addition to security personnel, in developing, implementing, and reviewing a workplace violence plan
  3. Procedures for coordinating implementation of a workplace violence plan with other employers whose employees work in the healthcare facility, service, or operation
  4. “A policy prohibiting the employer from disallowing an employee from, or taking punitive or retaliatory action against an employee for, seeking assistance and intervention from local emergency services or law enforcement when a violent incident occurs”
  5. Procedures to accept and respond to reports of workplace violence, including a prohibition against retaliating against employees who make such reports
  6. “Assessment procedures to identify and evaluate environmental risk factors, including community-based risk factors, for each facility, unit, service, or operation”

Violent Incident Log

The new safety order requires employers to record information about “every incident, post-incident response, and workplace violence injury investigation” in a violent incident log. Employers must record at least the following information in the log:

  1. “The date, time, specific location, and department of the incident”
  2. Information provided by each employee who experienced workplace violence, including:
    • a description of the incident,
    • a classification of the perpetrator, i.e., a patient, client, customer, family member of friend of the patient, a friend of family member of a client or customer, a stranger with criminal intent, a coworker, a supervisor, a partner or spouse, a parent or relative, etc.
    • the “circumstances at the time of the incident, including whether the employee was completing usual job duties, working in poorly lit areas, rushed, working during a low staffing level, in a high crime area, isolated or alone, unable to get help or assistance, working in a community setting, working in an unfamiliar or new location, or other circumstances”
  3. A description of the incident, including where the incident occurred and the type of incident, i.e., a physical attack, an attack with a weapon or object, a threat of physical force, a sexual assault or threat, etc.
  4. The consequences of the incident, including whether the employee received medical treatment and whether security or law enforcement was contacted
  5. The name, title, phone number, and email address of the person completing the log and the date the log was completed

Communication with Employees

The new safety order requires an employer’s workplace prevention plan to include procedures to communicate with employees regarding workplace violence matters, including procedures for:

  1. how to communicate information regarding conditions that may increase the potential for workplace violence incidents among employees and between shifts and units;
  2. how to report a violent incident, threat, or other workplace violence concern;
  3. how employees can communicate their concerns about workplace violence without fear of reprisal; and
  4. how the employer will investigate employee concerns, inform employees of the results of such investigations, and take any corrective actions.

Training

The new safety order requires employers to train all employees, including temporary employees, working in their facilities. The training must address the identified workplace violence hazards for each facility, any corrective measures that the employer has implemented, and any activities employees are “reasonably anticipated to perform” under the workplace prevention plan. Employers must conduct an initial training when they first implement a workplace violence protection plan.

In addition, employers must train newly hired employees and employees that it newly assigns “to perform duties for which the training required in this subsection was not previously provided.” Employers must also train employees when they introduce new equipment or work practices and when an employer identifies “a new or previously unrecognized workplace violence hazard.”

Key Takeaways For Employers

Given the safety order’s extensive requirements, potentially covered healthcare employers will hopefully already begun the process of preparing to comply. Workplace violence plans required under the new rule are complex in that they address workplace security, violence, and safety issues. Thus, employers will want to formulate a compliant plan and consider consultation with a security expert, workplace violence expert, and/or workplace safety consultant.

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. 


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