According to the National Safety Council, every year, millions of workers in the U.S. report having been a victim of workplace violence.  In 2020, workplace assaults resulted in more than 20,000 workplace injuries necessitating time away from work, and hundreds of fatalities.  In that same year, according to the CDC, gun violence in America claimed more than 45,000 lives.  As more reports on mass shootings flash across our Twitter feeds, it is no wonder that violence in America, and especially in the workplace, has become more of a focus. 

With this backdrop, California recently issued its latest draft rulemaking intended to create a workplace violence regulation.  And, as is often the case, what starts on our West coast generally moves East in the following months and years. 

The new California draft rule is intended to apply to all employers in the Golden State, with very limited exception.  It is intended to eliminate threats of violence, and workplace violence – or, at a minimum, facilitate programs to curtail the same and track their occurrence.  And, while the effort may be laudable, the definitions included in the draft rule are broad, are not always clear, and are likely to create headaches and confusion for employers:

• “Threat of violence” means a statement or conduct that causes a person to fear for their safety because there is a reasonable possibility the person might be injured, and that serves no legitimate purpose.”

• “Workplace violence” means any act of violence or threat of violence that occurs in a place of employment.  Workplace violence includes the following:

  • “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;

  • “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. . . .”

Accordingly, a “harsh” stare with no discernable legitimate purpose may be considered a “threat of violence.”  Further, should this harsh stare cause the co-worker at whom it is directed to be “stressed,” it now falls within the definition of workplace violence.

In addition to the broad definitions, the second headache created by the draft rule is that employers must maintain a “Violent Incident Log” of every workplace violence incident – including the harsh stare that creates stress for a co-worker.  For employers who are already plagued with significant recordkeeping obligations – this adds further administrative burdens. 

As noted, this is only the latest draft addressing workplace violence in California.  In fact, Cal-OSHA has been working on a workplace violence prevention rule since 2016, when it enacted a similar rule for healthcare workplaces (that rule is in effect).  And, it is not likely the last draft.  However, as this rule draws closer to being final, and as workplace incidents of violence become more common, it is very likely that other states or the Federal Occupational Safety and Health Administration (OSHA) will develop their own workplace violence standards.  (OSHA already has a landing page on its website devoted to the issue, which includes compliance directives for inspections, and various publications with recommendations for how various industries can avoid workplace violence.)

While there are some “headaches” in the draft rule, both it and OSHA both suggest employers should maintain a Workplace Violence Prevention Plan.  This is a very good recommendation – even if a regulation does not presently apply to your workplace.  At a minimum, such a plan can identify those items that an employer will not allow in its workplace, as well as the type of behaviors that the employer finds wholly unacceptable.  Further, such a plan can provide employees with a greater sense of safety and security in their workplace and surroundings (parking lots, etc.). 

Importantly, such a Plan also communicates to your employees that you are thinking about these concerns and employee wellbeing, and are attempting to address them in a positive manner.  Finally, such a Plan can provide employees with direction on where to go to report a concern – which may, in the end, prevent serious incidents of violence from ever occurring in the first instance.  Frankly, OSHA has repeatedly suggested that an employer’s failure to think about these issues, and to at least implement a plan, will likely support the issuance of a General Duty Clause violation and Citation.