This piece is motivated by the impending effective date of California Senate Bill 553 (SB-553), July 1, 2024.
Since the bill's ratification in September 2023, there has been much chatter and activity around compliance. Though the bill is specific to California, it has much influence, in our opinion, on what to expect countrywide. But what is the significance of why now, given that OSHA has been in place for over 50 years? This piece looks at the impact of OSHA in matters of workplace violence to date, places value on employer accountability and finally looks at what SB-553 means to those operating outside of California.
OSHA and Workplace Violence Incident Enforcement
Workplace violence and the harm it causes is not a new phenomenon. Take, for example, the period between 1992 and 2010; there were 13,857 reported workplace homicide victims in the United States. That’s an average of 700 victims per year. Nonetheless, the first truly defined set of guidelines around the matter was ratified in only 2023 (SB-553), after years of reading statistics on workplace violence homicides.
Some may respond to the above and say that legislative entities such as OSHA have been in place to protect employees on matters of workplace violence. The fact of the matter is that while OSHA (Occupational Safety and Health Act) has been around since the 70s, the legislative body behind the act spent most of its time addressing the manufacturing and construction industries, ensuring safety for employees from harmful chemicals and things like preventative slip and falls. Remember, OSHA was formed in 1970 to answer specific problems leading to voter upset and business disruption. In 1970 alone, there were 5,716 strikes involving 3 million workers. The climate of the United States called for placid signs from the government, and, as a result, that decade saw the creation of the EPA (Environmental Protection Agency), OSHA, the Clean Air Bill (sound familiar), and the Emergency Employment Act- all things to address the 70s edition of a labor movement. The point here is that OSHA set out with a mandate to address the issues of the time. Note, we are not discounting workplace violence as an issue of the 70s but simply adding context to the activity taken.
Up until SB-553 out of California, we’ll get to this in a minute, OSHA's treatment of workplace violence was what some might call minimal but yet operationally statistically aligned. In the early 2000s, the National Census of Fatal Occupational Injuries reported a 44% decline in workplace violence related homicides, and of the three groupings tracked, it contributed the least to workplace injuries and deaths. On paper, things were moving in the right direction for workplace violence-related deaths. In contrast, transportation-related incidents were at a tumultuous high, and death from chemical exposure was on the rise.
For more to set the tone of the time, when reviewing historical 'letters of clarification' written by OSHA, the first that mentions workplace violence is from 1992, which is over 20 years after its creation. The key text reads like this:
Although currently there are no specific Federal OSHA standards to address these [violence in the workplace] problems, the Federal Occupational Safety and Health Act (OSH Act), in Section 5(a)(1), provides that "each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." In a workplace where the risk of violence and serious personal injury are significant enough to be "recognized hazards," the general duty clause would require the employer to take feasible steps to minimize those risks. Failure of an employer to implement feasible means of abatement of these hazards could result in the finding of an OSH Act violation.
Though this was taken from a ‘letter of clarification’ document, the response is still quite broad, with loose boundaries. Don't just take our word for it; the OSHA site clearly states, "There are currently no specific OSHA standards for workplace violence." What does that mean then to the employer? Well, the General Duty Clause implies that if an employer has experienced acts of workplace violence or becomes aware of threats, intimidation, or other indicators showing that the potential for violence in the workplace exists, they must act and be able to prove they acted accordingly. With that said, it was not until 2011 that OSHA put out standards for their staff via a directive on how incidents of Workplace Violence should be investigated - this 40 years after its inception. The directive has since been updated in 2017.
These loose guidelines, however, do not mean that OSHA has not been investigating and passing citations against employers regarding workplace violence. From 1993 through 1995, OSHA issued eight Section 5(a)(1) General Duty Clause citations for workplace violence. However, after losing the 1995 case against Megawest Financial, workplace violence citations ceased. Well…kind of… Because OSHA did not maintain records on workplace violence investigations back then, it is difficult to ascertain how many proposed citations or other inspection activities related to workplace violence occurred immediately after the Megawest Financial case. Moreover, it was just in 2002 that a category for workplace violence was added to the investigator tracking intake, now making it easier to report on OSHA workplace violence incidents and investigations that can be measured against the resulting citations.
Since the failed citation in 1995, it was not until the 2010s, when more and more violations against healthcare workers were being reported, that the OSHA workplace violence operational vessel became noticed, and we saw a flood of General Duty Clause fines issued to healthcare facilities.Now, 20 years after the downward trend of workplace violence-related deaths in 2002, this fatal category accounts for 16% of workplace deaths today, or put another way, it has seen a 28% increase over a 20-year period. As one would expect, as the fatalities climb, OSHA's involvement in thwarting workplace violence through education, employee/employer programs, and enforcement has also smartly risen.
One of the most significant General Duty Clause fines handed out by OSHA in recent years has got to be the 2023 Half Moon Bay deaths. Here, two employers were fined a total of over $160,000 after an employee opened fire at the working establishments. Both employers were cited for failing to establish a workplace safety plan that evaluated the threat of workplace violence and for not training workers in a language they could understand.
What Role Do We Play as Employers?
So, where does this leave us? What is the role and responsibility of employers, ignoring for a second what the General Duty Clause tells us?
Like it or not, employers hold some accountability to the folks they employ. You’ve all worked on company value and mission statements that likely included things like integrity and ethics, and or teamwork and collaboration, and here’s another, respect. Employers and leaders often model value and mission statements as battle cries that unify employees. However, the very same employees are looking to their leaders to act with integrity and be ethical. To respect the well-being of all employed, and that includes taking the time to figure out a Workplace Violence Prevention Plan that works for your organization and your people. So, in addition to your security teams keeping the GLB Act or the PCI DSS top of mind, your Workplace Violence Prevention Plan should be a top of mind classification as well.
Have you created a plan, defined a methodology to proactively listen for threats that could impact the lives of your employees, created a frictionless method for employees to report items of concern, outlined a process for investigations, and finally, how is this all being securely documented and stored?
The truth is that employers owe workplace violence prevention planning not only to their employees but also to their shareholders and customers. Mass communicated acts of violence in a workplace could be detrimental to a brand's reputation, causing it to have to rebuild years of trust all over again.
When it comes to the safety of your people, operations, and brand reputation, you can definitely hope for the best, but preparing for the worst is the most prudent way to go.
What’s SB-553 Got To Do With It
By now, most of you are in the know about California Senate Bill 553 (SB-553), but if not, here's where it all tragically began.
Bill SB-553 was prompted by a fatal incident that occurred in 2021 at the Valley Transportation Authority (VTA) rail yard in San Jose, California. This incident, known as the VTA massacre, highlighted the urgent need for enhanced safety protocols in the workplace. In the aftermath of this horrific event, Senator Dave Cortese initiated the development of SB-553 to address the rising concerns of workplace violence and to prevent future incidents like the VTA massacre.
The journey of SB-553 began with a realization of the critical importance of enhancing safety measures in the workplace following the VTA tragedy. Through months of negotiations involving workers, businesses, and Cal/OSHA, SB-553 was crafted to establish a comprehensive workplace violence prevention plan encompassing various vital elements.
As the implementation deadline for SB 553 approaches (July 1, 2024), employers in California are required to:
- Conduct workplace violence risk assessments.
- Have in place a process to monitor, and investigate incidents of workplace violence.
- Operate an incident and case management process that is secure.
- Provide training for all employees, ensuring they understand the workplace violence prevention plan and its inherent processes.
Download our Workplace Violence Prevention Plan and Checklist to learn more.
Failure to comply with these regulations can result in significant financial and reputational penalties.
I know what you are thinking, well, those of you who do not operate out of California: " What's this got to do with me?" The answer—a lot.
The talk around SB 553 over the past 12 months has put everyone on alert. Other states and Federal agencies are looking to California to see how the model plays out.
The bill sets a precedent for workplace safety standards that other states might consider adopting in the future. Further, as other states observe California's initiatives in workplace violence prevention, it wouldn't be surprising to see similar legislation emerge across the United States. As a non-Califoronia employer, there is no time like the present to start your investigations into forming a viable Workplace Violence Prevention Plan, using the guidelines set out in the Cal/OSHA SB-553 legislation. Even if your operating state takes more time to enact legislation, you can rest assured that through this activity, you more than comply with the OSHA General Duty clause, Section 5(a)(1).
To Sum It All Up
Employers play a crucial role in ensuring the safety and well-being of their employees in the workplace, particularly when it comes to preventing workplace violence. By creating a culture of safety and implementing proactive measures, employers can help mitigate the risks associated with workplace violence and protect their workforce.
Ensuring employee well-being includes:
- Developing and implementing comprehensive workplace violence prevention plans that include threat monitoring and investigations protocols.
- Conducting regular risk assessments.
- Providing training on recognizing and responding to potential threats.
- Establishing clear reporting procedures for incidents of violence or harassment.
Employers must also foster open communication channels with employees, encourage reporting of any concerning behavior, and take swift action to address and prevent instances of workplace violence.
Moreover, employers must prioritize the mental and emotional health of their employees, as these factors can significantly impact the likelihood of workplace violence. Creating a supportive work environment, offering resources for mental health support, and promoting a culture of respect and inclusivity can help reduce stress and tension in the workplace, ultimately decreasing the risk of violent incidents.
The bottom line is that by taking proactive steps to address workplace violence and prioritize employee safety, employers not only fulfill their legal obligations and demonstrate their commitment to creating a safe and healthy work environment for all employees, but they also safeguard brand reputation from paralytic and long-lasting debasement.
That July 1, 2024, date should matter to us all.