California Employers Must Comply with the State’s Workplace Violence Prevention in Health Care Rule

California is the first state in the nation to propose and enact standards specifically aimed at protecting health care workers against workplace violence.  Under the rules, all California employers operating health care facilities, home health care programs, drug treatment programs, emergency medical services, and outpatient medical services for correctional and detention settings must: (1) establish, implement, and maintain an effective workplace violence prevention plan; (2) provide training to address workplace violence risks that employees are reasonably anticipated to encounter in their jobs; and (3) comply with increased recordkeeping requirements.  General acute care hospitals, acute psychiatric hospitals, and special hospitals must also report violent incidents to the Division of California Health and Safety (“Cal/OSHA”) within specified timeframes.

Coverage:  Employers with employees in California who work in “health facilities,” home health care programs, drug treatment programs, emergency medical services, and outpatient medical services for correctional and detention settings.

Effective:   The final rule is effective as of April 1, 2017. Cal/OSHA has extended the compliance dates for some of the new requirements. The compliance dates for specific requirements are below.

Actions Required:   

• Gather records of all incidents of workplace violence (with or without injury);
• Review existing workplace violence prevention policies, programs, and training ;
• Conduct an assessment to identify and evaluate workplace violence risk factors for each workplace;
• Create a new written Workplace Violence Prevention Plan;
• Develop training for employees charged with advising of identified workplace violence risks and corrective measures;
• Establish a recordkeeping process for training and workplace violence incidents; and
• Develop a policy that addresses privacy issues related to keeping records, reporting incidents to Cal-OSHA, and handling inspections of this Standard.

According to the U.S. Bureau of Labor Statistics, the rate of injuries and illnesses from violence in the health care industry is substantially higher than that of all other private industries.  The federal Occupational Safety and Health Administration estimates, 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, followed by visitors or co-workers. Proponents of the standard relied on these statistics in advocating for the need for hospitals and other healthcare facilities to develop and implement a workplace violence prevention plan.  The state of California agreed.

On October 21, 2016, the California Occupational Safety and Health Standards Board (Standards Board) unanimously passed the “Workplace Violence Prevention in Health Care” (Standard).  The Office of Administrative Law approved the Standard on December 8, 2016.  The Standard is codified in Section 3342 of Title 8 of the California Code of Regulations.  Below is a discussion on the operative portions of the Standard.

Who is Covered?

The Standard applies to any “health facility.” A “health facility” is defined as “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.”  This can include, among other things, hospitals, long-term care, intermediate care, congregate care, skilled nursing facilities, or psychiatric hospitals.   Emergency medical services and medical transport (including those services when provided by firefighters and other emergency responders), home health care programs and home based hospices, drug treatment programs, and facilities that provide outpatient medical services to those incarcerated in correctional and detention settings are also covered entities that must comply with the Standard.

What is Workplace Violence?

“Workplace violence” is broadly defined as any act of violence or threat of violence that occurs on the work site.  It includes a 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.  It also includes any incident that involves the threat or use of a firearm or other dangerous weapon, regardless of whether the employee sustains an injury, and any of the four workplace violence types. The four types of workplace violence are:

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

Workplace violence does not include those acts taken in defense of one’s self or in defense of another. 

Workplace Violence Prevention Plan: Covered employers must establish, implement, and maintain an effective written Workplace Violence Prevention Plan (Plan).  The Plan, which must be available to employees, must be in effect at all times and in every unit, service, or operation.  It must also be specific to the hazards and corrective measures for the particular unit, service or operation in which it is implemented. Employers may incorporate the Plan into the written Injury & Illness Prevention Plan (IIPP) that is currently required in California, or it can be maintained as a separate document.  Required elements of the Plan are: 

• Names or job titles of the individuals responsible for implementing the Plan;
• Procedures for the active involvement of employees (and their representatives) in developing 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 for coordinating implementation of the Plan with other employers whose employees work in the same health care facility, service, or operation;
• Procedures for obtaining assistance from law enforcement during all work shifts;
• Procedures for accepting and responding to reports of workplace violence, including anti-retaliation provisions to protect those who make such reports;
• Procedures to ensure supervisory and non-supervisory employee compliance with the Plan;
• Procedures for communicating with employees about workplace violence matters;
• Procedures to develop and provide training to employees on the 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 includes 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 (e.g. patient’s mental status, medications, history of violence, disruptive or threatening behavior, etc.);
• Procedures to correct workplace violence hazards in a timely manner; and
• Procedures for post-incident response and investigation.

At least annually, employers must review the effectiveness of the established Plan and correct any problems.  The annual review must include employees and their representatives, and it must address the employees’ specific work areas, services and operations.

Violent Incident Log:  Every incident, post-incident response, and the details must be recorded and maintained in a “Violent Incident Log.” The Log must contain, at minimum:

• The date, time, location, and department of the incident;
• A detailed description of the incident;
• A classification of who committed the violence;
• A classification of the 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.

The log cannot contain certain personal identifying information such as, an individual’s social security number, address, telephone number, etc.  The Log must be reviewed as part of the annual Plan review.

Training: Healthcare employers must provide training to address the workplace violence risks that employees are reasonably anticipated to encounter in their jobs. Employers must have procedures in place that facilitate employee participation in the training session, involvement in the development of the training curricula and materials, and review and revision of the program. 

The training is to be conducted at different times.  Training is necessary and must be conducted when (a) the Plan is first established, (b) an employee is newly hired or assigned to perform duties for which he/she had not been provided the training, (c) new equipment or work practice is introduced to the work environment, and (d) a new or previously unknown/unrecognized hazard has been identified.

The initial training must include:

• A detailed explanation of the employer’s Plan, including the hazard identification and evaluation procedures, general and personal safety measures implemented, procedures for communicating concerns about workplace violence, procedures for addressing workplace violence incidents, and instructions on how an employee can participate in reviewing and revising the Plan;
• An explanation of 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;
• Discussion on how to recognize alerts, alarms, or other warnings about emergency conditions and the use of identified escape routes or shelters;
• An explanation of the role of private security personnel, if any;
• Instructions on how to report violent incidents to law enforcement;
• Identification of any resources available to employees for coping with incidents of violence; and
• An opportunity for interactive questions and answers with a person knowledgeable about the employer’s Plan. 

Employees involved in patient contact activities and their supervisors must receive annual refresher training. Those 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 receive training prior to their initial assignment and at least annually thereafter.

Recordkeeping: Health Care employers must keep various records and submit them to Cal/OSHA and employees and representatives of Cal/OSHA upon request.  Among the records to be maintained are:

• Records of workplace violence hazard identification, evaluation, and correction;
• Training records, which must be maintained for one year and must include training dates, contents or a summary of the training sessions, names and qualifications of the persons conducting the training, and names and job titles of all persons attending the training sessions; and
• Records of violent incidents, which must be maintained for 5 years and must include, but not be limited to, violent incident logs, reports prepared in compliance with the reporting requirement, and workplace violence injury investigations. 

Reporting Requirements: The Standard imposes reporting requirements on general acute care hospitals, acute psychiatric hospitals, and special hospitals.  These facilities must report to Cal/OSHA any incident involving 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.  Incidents involving the use of a firearm or other dangerous weapons, regardless of whether an employee sustains an injury, must also be reported.

All reports must be made within 72 hours.  Incidents that result in a fatality, an injury that requires inpatient hospitalization for 24 hours (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 must be reported within 24 hours. 

The reporting requirements are effective April 1, 2017.  Cal/OSHA is expected to establish an online system for employers to report all required information.  Once the online system is operative, we will be sure to notify you. 

Implementation Dates:  The Standard is effective April 1, 2017.  In addition to the reporting requirements identified above, the recordkeeping provision and the provision pertaining to the Violent Incident Log are effective April 1, 2017. The Workplace Violence Prevention Plan, system review for the Plan, and training requirements must be implemented by April 1, 2018.

For additional information, please contact your ADP Risk and Safety Consultant.