Episode 229: Clearing Common Misconceptions About Workplace Violence Prevention Standards

Welcome to the Workplace, a podcast by Cal Chamber. I'm Bianca Saad, General Counsel for Labor and Employment with the California Chamber of Commerce. Hello listeners. Unbelievably, we have already had the one year anniversary of the effective date of California's general industry workplace violence prevention standards. In this past year, we here at Cal Chamber have been providing support to employers on this recent law and, and we have learned that there are still quite a few misunderstandings and misconceptions about how to remain compliant. So to help us demystify some of these sticking points, we welcome back Vanessa Green, Cal Chambers employment law subject matter expert, who has been spearheading our workplace violence support programs. Thank you for being here, Vanessa.

Thanks, Bianca. It's great to be here.

So one thing you and I have learned together over the last year is that there are ongoing misunderstandings about the baseline requirements of this law. I think a good starting point would be to refresh what exactly California's workplace violence prevention standards look like for most businesses.

I think that's a great place to start because this law applies to nearly every business in California. There's just a few narrow exceptions which we'll touch on in a bit. But I'll just mention that one of the biggest exceptions is for healthcare employers. And, and that's only if they're already following Cal OSHA's separate workplace violence standard for health care industry. That's a completely different set of rules than what we're talking about here. Okay, so for everybody else that's under this general industry standard covered, employers have to have four key things in place. So those four things are, number one, they have to have a written workplace violence prevention plan that contains a number of specific technical elements. Number two, they have to have workplace violence training, and it has to be tailored to the employer's actual work sites and job duties, and it has to cover all of the required topics. Number three, they have to have a process for investigating and recording workplace violence incidents. And then lastly, they have to have record keeping procedures that track everything related to their plan, their training, and any incidents. So if employers don't already have all of those four components with all of those required pieces of the components, they're not in compliance and they'll really want to make it a priority to get those pieces in place as soon as possible.

Yeah, that's really important. And since that written workplace violence prevention plan is really driving the rest of the compliance points you talked about, what is a big area of confusion that you've experienced with employers around the plan creation and implementation.

So one of the biggest areas of confusion has come from employers with multiple work sites. So these employers are often unsure how to approach building a compliant plan. They're not sure what to do when they have operations that vary across different worksite locations. And that makes sense, right, because the law requires that the plan include things like how employers are going to identify and correct workplace violence hazards, and also how employees are expected to report incidents and threats or concerns. But if you have several different work sites, then the answer to those questions might be different depending on the work site. For example, the hazards at a corporate office are likely not going to be the same as those in at a warehouse, for example, or a field site. And reporting processes for employees, those might vary as well from worksite to work site. So the takeaway here is that employers are struggling with this because they need to have a plan that's tailored to each individual work site. So what this looks like, practically speaking, that means employers might be going to each work site, assessing the specific hazards of each work site, documenting how they're going to correct them, and then identifying the reporting procedures that apply to that site. And then all of that information for each of those work sites needs to be clearly outlined in the written plan. So it's a big lift for multi site employers, but it's really critical for compliance.

I definitely think that's one of our biggest compliance concerns because it requires a significant undertaking, as you mentioned, to inspect for the plans at multiple work sites, especially if they aren't geographically close to each other or if you have several. Something else we've continued to see from members is how to interact with employees on creating, reviewing or revising their plan. So what does the law require with that?

The law actually requires employers to involve their employees in the process of their plan, both the development and implementation of their plan. And so that's going to include doing things like having employees participate in identifying, evaluating and even correcting workplace violence hazards. Also could be things like involving employees in reporting and investigating incidents. Right. So your plan has to describe how you're going to involve your employees in these processes, these required processes. So some examples that I'll share of how employers might meet this requirement. You could ask employees to identify any hazards or concerns that they've noticed. So you could do this a couple different ways. You could have a verbal discussion with your employees, something like a safety meeting, right, where you're asking for this input from your employees. You could also do it in writing. Ask employees to complete a form, for example, like at Cal Chamber. In our workplace violence prevention toolkit, we actually have sample forms that employers can use to give to employees to gather this kind of input from them. So the key here is really just understanding that this employee involvement, it's not optional, it's built into the regulation. And so employers need their plan to reflect how they're making things happen with this employee involvement.

Okay, wonderful. So now that takes us to training, which is about equally, if not more popular, of a topic of concern than the plan itself. So what is the biggest misunderstanding around training that you have heard so far?

Yeah, there has definitely been some misconceptions around training, Bianca. I think the biggest one is employers thinking that they can use some kind of one size fits all, off the shelf training for workplace violence prevention. And that's just not how it works. The training, it has to be specific to the employer's actual work sites and the job duties that their employees are performing. In other words, the training has to be based on the employer's workplace violence prevention plan for their work sites. So if they don't have a plan in place yet, they really can't do the training properly. Right, because you don't have the content that you're supposed to train on. Now, I totally get why employers would want something ready to go off the shelf so they can check the box and move on. Right. Because it's hard. You got all these different things you're trying to juggle in the workplace. But here's the thing. If you try to do this training before you've created your plan, you're really putting the cart before the horse. And so employers just need to understand that they have to meet the topic requirements for what's contained in this training.

Okay. And around the training, I know another question that we've seen a lot is, well, we know we have mandatory training for employees to prevent harassment in the workplace. So is that mandatory harassment prevention training enough to address these workplace violence prevention requirements?

No, it's not. So those are two entirely different trainings with completely separate legal requirements behind them. And I know some employers are getting a little confused on this, but they need to just think about it as two completely separate things, because, for one, they're based on different laws. Right. And then, number two, the content is different for these types of trainings. The length requirements are different. The trainer qualifications are different for each of these trainings. For example, harassment prevention training, it has very specific rules about how long the training must be and who is qualified to lead the training. Workplace violence prevention training, on the other hand, it has different rules, and it needs to contain things like how to recognize threats, reporting procedures, reviewing your actual workplace violence prevention plan as part of your training. So just two totally separate trainings. Employers need to provide both trainings separately to stay compliant.

Okay, that is wonderful.

Yeah.

And I hope that clears it up for a lot of people, because I know we've been seeing that question. Okay, so as we close out for this one, are there any other major sources of confusion that you've discovered so far in supporting employers with their workplace violence prevention needs?

So definitely there are. So one of the biggest areas of confusion I think I've seen is around whether an employer has to comply with these workplace violence prevention requirements or if they fall under an exception. So let me just quickly run through the main exceptions for everybody. So first, we have health care employers or other employers who are already complying with Cal OSHA's workplace violence state standard for the healthcare industry. Okay. Second, facilities that are operated by the California Department of Corrections and Rehabilitation, and then third, law enforcement agencies, those are all exceptions. Now, there's two more exceptions that tend to raise the most questions. The first one is remote employees. So this exception applies to employees who work in exclusively from a location of their choosing that is not under the employer's control. So that doesn't include hybrid workers who go into the office sometimes. Right. That's also not going to include employees who go perform work at, like, customer job sites or other locations that are assigned by the employer. Okay. So this remote exception is really narrow. The second one that raises confusion is small work sites that are not accessible to the public. So this one applies if you have a work site with fewer than 10 employees at any given time, and that is not accessible to the public. And the problem comes into play here because Cal OSHA hasn't actually defined what they mean by not accessible to the public. So, for example, if a work site occasionally hosts visitors or clients and has them coming into the work site, is that considered public access? What if they share an office space with other businesses? Right. What if their particular part of the business is private, but then they have a restroom area that's, you know, open and shared with other businesses or the public or things like that? We just don't have clear guidance. We don't know if that means accessible to the public or not? So that's where a lot of confusion is coming up for employers. Final reminder here, it's really the employer's responsibility to prove that they qualify for an exception. So employers, you know, if you're having any uncertainty as to whether you fall under these exceptions, I would say it's best to err on the side of compliance or run it by your legal counsel if you're just not sure.

Yes, that is an excellent reminder. I like that you broke those two exceptions down, because I think they can be mistakenly oversimplified to oh, if an employee's remote, I don't have to worry about it, but maybe we're sending them to a remote location or oh, we have fewer than 10 employees so we don't need to worry about it and we know that's just not the case. So Vanessa, this has been an excellent discussion and I greatly appreciate you taking the time to discuss the real world confusions that we've seen in best practices as we have this first year supporting employers with workplace violence prevention compliance under our belts.

Oh, it's my pleasure, Bianca. Thanks for having me on here.

And thank you listeners for joining this discussion on the workplace. Please share and subscribe to Cal Chambers podcast by visiting calchamber.com.