March 27, 2023

Volume XIII, Number 86


March 24, 2023

Subscribe to Latest Legal News and Analysis

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

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.

Whew….what an exhaustive list!  If you are covered by this new rule, I encourage you to read it in its entirety.  There are many potential pitfalls in trying to comply with the rule.  But, never fear, there are approximately 17o pages of rationale for the rule contained in the Standard Board’s Statement of Reasons to help guide employers.

Jackson Lewis P.C. © 2023National Law Review, Volume VI, Number 355

About this Author

Carla J. Gunnin, Jackson Lewis, OSHA Lawyer, Employment Safety Attorney

Carla Gunnin is a Principal in the Atlanta, Georgia, office of Jackson Lewis P.C. She is Co-Leader of the firm’s Workplace Safety and Health practice group. She focuses her practice on occupational safety and health issues.

Although she is based in the firm’s Atlanta office, Ms. Gunnin has a national practice and litigates cases before federal and state administrative tribunals throughout the United States in matters of Occupational Safety and Health (OSHA) law and Mine Safety and Health (MSHA) law.

404) 525-8200