Episode 216: Potential Changes Coming to Workplace Violence Prevention Standards

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, Associate General Counsel for Labor and Employment with the California Chamber of Commerce. Hello, listeners. Something we've discovered during our annual New Law seminars this year is that it is actually a law that took effect before January 1, 2025, that continues to be top of mind for employers in California. And that law specifically is the general industry workplace violence prevention standards that actually took effect July 1st of last year in 2024. The complexity of the law, as well as required annual reviews of the employer's workplace violence prevention plan and annual training on that plan have definitely contributed to keeping this compliance issue at the forefront. Unfortunately, while employers continue to hone and fine tune their plans based on the current law, the Cal OSHA Standards Board is currently working on draft regulations that may further complicate this area of law. So to help understand what the Standards Board is doing and where it is in that process, we welcome back Rob Moutrie, Cal Chamber's Senior policy Advocate for workplace safety issues. Thanks for joining me today, Rob.

My pleasure, Matthew. Good to be here.

Excellent. Well, there are some substantial issues to cover with the current draft workplace violence prevention regulations. So let's just dig right in. Can you start by offering some background around why the Standards Board is even working on this in the first place after employers just spent so much of the last year getting into compliance with the bill, SB553?

Yes. So this legislation took a kind of abnormal turn. Most pieces of legislation, as you know, Matt, they pass, they go into the Labor Code or wherever else, and we implement them. Here you have a piece of legislation which is aimed at rushing an existing Cal OSHA regulatory process. And so they kind of split things here. They said, hey, we're going to put this in the Labor Code right now. You need to comply right now. But since this is a Cal OSHA issue, Cal OSHA needs to review what we put in the Labor Code and tweak it as much as they want, but they've got to get that in place on a tight timeline. They've got to have their draft basically lined up by the end of 2025 and then adopted by the end of 2026. So you kind of have two pathways, and it's because of that dual legislative requirement, both put this in place now and Cal OSHA circle back and tweak it if you want that. We are now talking about potential changes this quickly after the new obligation.

Okay. So these regulations, as I understand, are currently being debated in advisory meetings, so not necessarily with the full board. What are these advisory meetings and how they kind of fit within the overall rulemaking process?

Yeah, that's a good question. Advisory committee meetings aren't something that I think everyone's familiar with. You don't learn it in high school, you know, civics. So advisory committee meetings are part of the rulemaking process or the regulatory process, and they are a really early step, part of what's called informal rulemaking. So advisory committee meetings, basically all of the stakeholders will be invited by Kellogg, and you'll just be in a room talking and fighting over language. That's when the most changes to a draft happen. After you're done with that informal part, you move to what's called formal rulemaking, and that's where it's harder for the agency to change their draft language. So the big changes happen now in the informal rulemaking process as part of these advisory committee meetings. And you know, we're having those right now on the workplace violence regulation to debate what that kind of final language will be, which will be finalized by end this year and then potentially passed by the end of next year, 2026.

So good. So we're debating these changes to the regulations, obviously, the language that will go forward to the board for votes, as you said, by the end of the year. The current version of the regulations, as I've seen them, provide a lot more specificity in certain areas compared to the law that the legislature enacted at the end of 2023. So let's start with workplace violence hazards. What are some of the examples of hazards that are in these regulations and any kind of concerns that you might have around what the language looks like.

You make a good point on that. And Matthew, I want to be very clear about so that the audience knows what we're talking about now is the draft language Kalosha is looking at, which is not in effect yet. But this is the discussion about should we make the new version more detailed? One of the areas they're looking at, adding very specific details, is what's considered a workplace violence hazardous. And that's important because if the regulation says a certain thing is a workplace violence hazard, then you as an employer have an obligation to change or address that hazard. So right now, the draft version being debated lists a couple of things as hazards that I think we would agree are unavoidable parts of certain businesses. For example, working alone or in isolated areas, working in areas with poor illumination or blind spots where you can't necessarily see someone coming. Working somewhere with money or valuable goods. Right. Working somewhere where you have frequent or regular contact with the public, you might say that one or all of those might be a necessary part of, say, a retail store that's open past sundown or a gas station convenience store. Those necessary and unavoidable parts of certain businesses are in this draft being flagged as hazards. That's a huge concern for us because it means that potentially you have an obligation to change that situation. Right. Maybe not be open as late, maybe not have money or valuable goods, though it's unclear how you do that in a retail context. So those specific definitions are really concerning to us presently.

Okay. So with those in the language, obviously in some cases you can think about those as potential hazards. But what you're saying to me here is they're not necessarily hazards in every respect for every business, under every circumstance that would require mitigation, right?

Yeah, that's right. And what we're trying to, on behalf of the business community, what Cal Chamber is pushing for in this, in the advisory committees and going forward in this regulatory process is to try to flag that these things may be factors that contribute to a hazard. You know, obviously, taken together, a bunch of these things could create an unsafe scenario you might want to address. But individually, they are not a hazard by themselves. Right. Simply being open late is not itself a workplace violence hazard. It's just a factor that you may consider as you're trying to determine if your workplace presents a hazard. So that's what we're trying to get Callosha to come to. And we had, you know, obviously it's early to tell and we'll have to see what they come out with in their next draft. But we had some favorable feedback at the last advisory committee where I'm hopeful we'll be able to get, you know, that language improved.

Great. Speaking of hazards, obviously there's always a risk of violence for public facing businesses. I know you talk about. These are just some of the factors of just being open for business. Especially if you're in areas like retail, restaurant, you serve the public, or maybe even specific clients or patients, you're just open to people coming into your business. Certain situations may require employees or management to confront unruly people, whether they belong there or not, for the protection of everyone, their customers, their clients, their fellow employees. How does the current draft handle employees confronting others out in the public or non employees when it comes to somebody being unruly or potentially violent?

Yeah. That is another big issue that is being discussed at these advisory committees. And it takes a little history, a little context. Text for this to make sense. Right.

When SB 553, the bill that made all this into law, was being debated, the retail theft epidemic was really in full swing and at the center of the news. Right. And there's a lot of debate about a provision that the author wanted there to prohibit any business from having an employee, quote, confront anyone who was either suspected of a crime or suspected of any workplace violence, which, as you know, under this regulation, could even be angry yelling. Right. And we on the business community side were very worried about that, because you may want to have an employee just say, hey, you know, can I help you with that from a safe distance? Or say, hey, sir, you know, I see that you're carrying a lot of things. Can I get you a cart? Something to politely and safely say, we see what's happening. The concern is that if you just prohibit any policy of, quote, confronting a suspect without defining what that means, you could prohibit any employer from having an employee speak to someone you have concerns about. And as you pointed out, that's a huge issue. Right. You could be asking someone who's being unruly to leave. That is a verbal confrontation, potentially. You could be suggesting someone, hey, you know, can I help you carry that to the register? While standing at a distance, you know, very safe. But that is verbal confrontation. So the present draft, and this is where the big concern becomes, you know, real right? Now, the present draft would prohibit employers from having their employees, quote, confront anyone suspected of illegal behavior or workplace violence. The present law, and I'll be very clear for those listening, present law does not include that language. So those of you at retail locations, you know, others, you don't need to worry. You are presently free to ask someone to leave if you think they're performing, you know, criminal acts or workplace violence. But the draft language Kalosha is discussing would prohibit confrontation without defining what confrontation means. So that's a huge concern in this draft for us. And one of the things we're looking to fix.

Great. We know with SB553, of course, just identifying the hazards, whether it's unruly people or being open at night or small staffing levels, as you mentioned, are parts of looking into whether those are actual workplace violence hazards. For us, that's a requirement that we have. The secondary requirement, obviously, of course, is to fix that problem. Right. We also need to mitigate the hazard where appropriate. So one of the risk factors for workplace violence might be the number of staff on site. I know you and I have talked about this a couple times. Now on this show, how does the regulation address staffing as a mitigation measure? And do we have concerns about the current language that is, you know, are employers going to be required to hire more people just in the name of workplace safety?

Yeah. This is probably one of the other large issues that got fought over at the advisory committee. And the context here is also really important. So for some time, certain labor groups have been pushing to add an obligation into law, and they tried it in SB553. It got taken out. But to try to add an obligation for employers to hire more staff as a safety point. Right. You must hire more staff as a solution to any workplace violence hazards. This is something on the employer side. Right. We've really tried to resist for a couple of reasons. Number one, we don't believe that you should have to hire staff who don't have work to do 99% of the time, just in case someone might come in and prom a criminal act. And we're not talking about security guards here. The staffing obligations, we're talking about being added. Just say more staff. Right. The second problem that we have is, you know, we talked about how the draft would prohibit any employee from confronting a shoplifter or a workplace violence eventually. And we don't see how more staff can help you if those staff can't do anything. Now, I want to be clear about separating this. Right. The proposal would allow security personnel to intercede, but not general staff. Right. And obviously that's a separate issue for us when we talk about what's the real on the ground truth here is the idea that every single business in California is going to have security personnel on the ground. That's just not realistic as we read it. But anyway, back to the point you raised. Yeah. The present draft pushes on employers to potentially be required to hire more staff without really making clear why more staff would be helpful and if those staff might in fact be in more danger.

Okay. Yeah. And I think that's a key crux because again, as we talk about the differences between this draft regulation, what the law requires at this point, staffing is just something that you maybe have to consider as a mitigation measure, if appropriate, again, under the law currently. Right, right, right.

But you're not compelled to do it, which as you look at this draft and adding more detail, one of the concerns is the way they write up identifying staffing as a mitigation seems to suggest more of an obligation.

Right.

Than considering.

Okay. So lastly, of course, then, once we've got our hazards and our mitigation measures in place, sometimes we still get workplace violence incidents at the work site. And there's a requirement under SB553 that had us do a post incident investigation, fill out that required log we have to do, then look at our plan, do we need to make adjustments to it? And that's about it for post incident response. A lot of it is still left up to employers in terms of how they do their investigation and what changes they make to the plan. But there's something interesting in the current draft regulations that we're talking about here about post incident counseling for employees. Can you elaborate more on that piece and what issues may arise from that?

Yes. So just as you said, the present law has a more general obligation. The employer must have post incident procedures. Right. But it doesn't list out everything that must be in there. Or one of the things that the labor groups are pushing for in this advisory committee process is that they want Cal OSHA to have a more specific list of obligations for employers in post incident response. And one of those that is in the current draft and that labor is trying to push for would be an obligation to provide individual counseling in any post incident response to any affected employee. Now, on the employer side, the concern here obviously is first kind of what are the parameters of that? What is the cost of that? Is that feasible? Right. We're talking about individual counseling. So it's not a group session. How many individual counselors are available in California? Right. How many sessions do you have to give if every employer in the state's looking Right. How do you make that work? You know, counseling is part of some employers EAP presently, but not every employer's and also is not a statutory requirement. So now you have a lot of practical questions. How many sessions do I provide? Who even gets it right? If someone is, let's say you have someone yelling an angry verbal threat in, say, a bar on a Friday night and this presumably the people who are targets of the yelling maybe get it if they're an employee. What about people who weren't a target but are nearby? What about people in the next shift who heard about it and felt emotional about their friend being scared but didn't personally hear it? Right. How are you drawing those boundaries as you consider these obligations? And those are all big concerns for us and things we're trying to raise as part of the process?

Rob, we do look forward to hearing more and more about this, but I got one last question for you. So as we're looking forward to hearing more about this what does the future look like for this regulation? When can employers expect the final version to take effect? I know you mentioned this at the outset, but I think it'd be really good to get into kind of a detailed discussion about what steps are coming for employers as they work through their plans that they have to review on an annual basis.

Yeah, absolutely. So bottom line, right, the existing law is going to stay in effect until probably the end of 2026. SB553 lays out a timeline that Cal OSHA has to follow with these revisions. They have to have their draft mostly finalized by December 1, 2025. That'll be the end of what I called the informal rulemaking process. They're going to go in front of the Standards Board in December of 2025 and start what's called that formal rulemaking process, which will last about a year and the board has to vote to approve it by the end of 2026. Functionally, big picture, what that really means is whatever changes we end up with in this process are going to be going into effect for employers in early 2027.

Okay, so plenty of time to stay tuned to the news here. So thank you, Rob, for taking some time out of your day to discuss this vital update with us on the workplace violence prevention regulations. Glad to be here and thank you listeners for joining this discussion on the workplace. Please share and subscribe to Cal Chamber's podcast by visiting calchamber. Com.