In the wake of recent workplace shootings, employers may be wondering if there are any specific regulations to protect employees from such events. Labor Code § 6302(h) as part of the California Occupational Safety and Health Act, excludes “any injury or illness or death caused by the commission of a Penal Code violation” from the definition of serious injury or illness, and Cal/OSHA has no mandatory duty to respond to such incidents. However, Cal/OSHA does have the authority to investigate any workplace accident on a discretionary basis, as provided by Labor Code § 6313(b), which states: “[t]he division may investigate the causes of any other industrial accident or occupational illness which occurs within the state in any employment or place of employment… and shall issue any orders necessary to eliminate the causes and prevent reoccurrence.”

Currently, Cal/OSHA only specifically regulates workplace violence in the Health Care Industry. But there is no regulation covering workplace violence in other industries.

Nevertheless, Cal/OSHA does require employers to regularly identify and evaluate workplace hazards, under California’s version of the general duty clause.  As these incidents become more prevalent, or if an industry has factors that could increase the risk of violence as detailed below, Cal/OSHA may take the position that workplace violence is a recognized hazard that should be mitigated.

Indeed, Cal/OSHA, in its guidance on workplace violence, cites certain factors to consider for the potential of violence including:

  • Exchange of money
  • Working alone at night and during early morning hours
  • Availability of valued items
  • Guarding money or valuable property
  • Performing public safety functions
  • Working with patients, clients, or similar
  • Employees with a history of assaults or who have exhibited belligerent, intimidating, or threatening behavior.

According to Cal/OSHA, workplaces that identify factors for potential workplace violence should include the following in their Injury and Illness Prevention Plan (IIPP):

  • A system for ensuring that employees comply with safe and healthy work practices, including ensuring that all employees, including supervisors and managers, comply with work practices designed to make the workplace more secure and do not engage in threats or physical actions which create a security hazard to other employees, supervisors or managers in the workplace.
  • A system for communicating with employees about workplace security hazards, including a means that employees can use to inform the employer of security hazards at the worksite without fear of reprisal.
  • Procedures for identifying workplace security hazards including scheduled periodic inspections to identify unsafe conditions and work practices whenever the employer is made aware of a new or a previously unrecognized hazard.
  • Procedures for investigating occupational injury or illness arising from a workplace assault or threat of assault.
  • Procedures for correcting unsafe conditions, work practices, and work procedures, including workplace security hazards, and with attention to procedures for protecting employees from physical retaliation for reporting threats.
  • Training and instruction about how to recognize workplace security hazards, measures to prevent workplace assaults, and what to do when an assault occurs, including emergency action and post-emergency procedures.

These policies and procedures should also be mirrored in Employee Handbooks to the extent necessary to ensure communication of the requirements.

If you have questions about including workplace violence prevention information in your IIPP or employee handbook, contact a Jackson Lewis attorney to discuss.

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Photo of Sean Paisan Sean Paisan

Sean Paisan is of counsel in the Orange County, California, office of Jackson Lewis P.C. He is the leader of the firm’s Cal/OSHA practice subgroup and co-leader of the firm’s Construction industry group. His practice focuses on assisting employers with Cal/OSHA compliance, investigations…

Sean Paisan is of counsel in the Orange County, California, office of Jackson Lewis P.C. He is the leader of the firm’s Cal/OSHA practice subgroup and co-leader of the firm’s Construction industry group. His practice focuses on assisting employers with Cal/OSHA compliance, investigations, and fighting citations. Additionally, Sean also assists employers in data privacy and traditional employment matters, including litigation and counseling.

Sean’s first exposure to OSHA regulations occurred during his undergraduate studies while working for a construction company that helped build Disney’s California Adventure. After attending law school and working for the Los Angeles County District Attorney’s Office and the United States Attorney’s Office, Sean moved into private practice, where he focused on general liability matters, including serious injuries and fatalities. Through this experience, Sean became very knowledgeable on the myriad of Cal/OSHA regulations imposed on businesses, especially in the construction, manufacturing, and healthcare industries, and the consequences for violations of those regulations. From there, Sean became OSHA 30 certified and began assisting employers with all workplace safety matters, from compliance, to investigations and inspections, to the appeals of citations in California, Arizona, Washington, and Hawaii.

Throughout his career, Sean has been called upon to try cases that cannot be settled. He has handled trials in the United States District Court, California Superior Court, Cal/OSHA Appeals Board, Workers Compensation Appeals Board, and the US Department of Labor OALJ, as well as binding arbitrations. Sean has tried cases involving the following subjects: general employment, wrongful death, premises liability, unfair competition (B&P § 17200), false advertising (Lanham Act), misappropriation of trade secret, restrictive covenants, and whistleblower (AIR21).

In addition to his trial experience, he is routinely called on to assist his clients with workplace crises such as catastrophic injuries, fatalities, data breaches, and ransomware incidents. Drawing on his years of in both civil and criminal law, Sean’s unique background allows him to anticipate and proactively manage issues, rather than simply reacting to requests and inquiries by investigating agencies such as law enforcement, OSHA, Cal/OSHA, California Bureau of Investigations (BOI), Federal Aviation Administration (FAA), National Transportation Safety Board (NTSB), as well as opposing counsel in litigation matters.

In addition to his litigation experience, Sean has earned the CIPP/US credential through the International Association of Privacy Professionals (IAPP). He helps organizations manage rapidly evolving privacy threats and mitigate the potential loss and misuse of information assets. He has an in-depth understanding of how privacy laws can impact business operations. These laws include the Health Insurance Portability and Accountability Act (HIPAA), Federal Trade Commission Act (FTC Act), Health Information Technology for Economic and Clinical Health Act (HITECH), Genetic Information Nondiscrimination Act (GINA), Fair Credit Reporting Act (FCRA), Gramm-Leach-Bliley Act (GLBA), Fair and Accurate Credit Transaction Act (FACTA), Dodd-Frank Wall Street Reform and Consumer Protection Act, California Financial Information Privacy Act, Family Educational Rights and Privacy Act (FERPA), Telemarketing Sales Rule, Telephone Consumer Protection Act (TCPA), Junk Fax Prevention Act, Controlling Assault of Non-Solicited Pornography and Marketing Act (CAN-SPAM), Cable Communications Policy Act, Video Privacy Protection Act, Children’s Online Privacy Protection Act (COPPA), California Online Privacy Protection Act (CalOPPA), California Consumer Privacy Act (CCPA), and California Privacy Rights Act (CPRA). With respect to laws affecting the ability of the government to obtain information, Sean can assist employers in understanding their obligations under the Federal Wiretap Act, Electronic Communications Privacy Act (ECPA), Communications Assistance for Law Enforcement Act (CALEA), Right to Financial Privacy Act, Privacy Protection Act, Foreign Intelligence Surveillance Act (FISA), and USA PATRIOT Act.

Before becoming an attorney, Sean earned his bachelor’s degree in accounting from the University of Southern California, where he also played varsity ice hockey in the ACHA. When not practicing law, Sean enjoys spending time with his wife and three young children, playing adult league ice hockey, mountain biking, and motorsports.