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By Joshua M. Henderson, Ilana R. Morady, Brent I. Clark, and Craig B. Simonsen

Introduction: We are posting our colleagues’ California Peculiarities Employment Law Blog post on workplace violence.  While this particular topic is California centric, the principles discussed below are universal, and appropriate to publish widely.  For instance, workplace violence under federal OSHA is generally citable under the General Duty Clause of the Occupational Safety and Health Act. Many states, including California, also enforce workplace violence under their own versions of the General Duty Clause.  Additionally, local authorities generally will not get involved in a situation where employment workplace violence is feared — such as where one employee makes threatening statements about a co-worker/manager.  But where the employer/employee has obtained a restraining order, the police are more likely to intercede.

By Christopher Im and Minal Khan

Seyfarth Synopsis: Workplace violence is a major concern that can take the form of intimidation, threats, and even homicide. But fret not: California employers can arm themselves with restraining orders, to prevent a modern version of the “Fight Club” at work.

Rule Number 1: If There’s a Workplace Violence Threat, DO Talk About It—In Court

Being at work during a scene reminiscent of “There Will Be Blood” is not an ideal situation. Yet incidents of workplace violence are alarmingly common. According to the Occupational Safety and Health Administration, nearly two million Americans report that they have witnessed incidents of workplace violence, ranging from taunts and physical abuse to homicide. The recent Long Beach law firm shooting by an ex-employee serves as a chilling reminder of what forms such violence can take.

While there is no surefire way to stop unpredictable attacks against employees—whether by a colleague, client, or stranger—California employers can avail themselves of measures to reduce the risk of workplace threats. One such measure is a judicial procedure: a workplace violence restraining order under California Civil Procedure Code section 527.8.

Rule No. 2: Understand What a California Restraining Order Looks Like

A California court can issue a workplace violence restraining order to protect an employee from unlawful violence or even a credible threat of violence at the workplace. A credible threat of violence simply means that someone is acting in such a way or saying something that would make a reasonable person fear for the person’s own safety or that of the person’s family. Actual violence need not have occurred. Many actions short of actual violence—such as harassing phone calls, text messages, voice mails, or emails—could warrant issuing a restraining order.

Restraining orders can extend beyond just the workplace and protect the employees and their families at their homes and schools. A California court can order a person to not harass or threaten the employee, not have contact or go near the employee, and not have a gun. A temporary order usually lasts 15 to 21 days, while a “permanent” order lasts up to three years.

Rule Number 3: Employer Requests Only, Please

The court will issue a workplace violence restraining order only when it is requested by the employer on behalf of an employee who needs protection. The employer must provide reasonable proof that the employee has suffered unlawful violence (e.g. assault, battery, or stalking) or a credible threat of violence, or that unlawful violence or the threat of violence can be reasonably construed to be carried out at the workplace.

So how does an employer request and obtain protection for their employees?

Rule Number 4: Document the “Fight”

The employer must complete the requisite forms and file them with the court. Though the forms do not require it, it often is helpful to include signed declarations from the aggrieved employee and other witnesses.

If a temporary restraining order is requested, a judge will decide whether to issue the order within the next business day, and if doing so will provide a hearing date on a permanent restraining order. A temporary restraining order must be served as soon as possible on the offender. The order becomes effective as soon as it is served. Temporary restraining orders last only until the hearing date.

Rule No. 5: Keep Your Eyes on the Prize at the Hearing

At the hearing, both the employee needing the restraining order and an employer representative should attend. Employers may bring witnesses, too, to help support their case. The person sought to be restrained also has a right to attend, so the employee needing the restraining order should be ready to face that person. If necessary, the employer or the employee can contact the court or local police in advance to request that additional security or protective measures be put in place where there is a threat of harm.

During the hearing itself, the judge may ask both parties to take the stand for questioning. Upon hearing the facts, the judge will either decide to deny the requested order or decide to issue a permanent restraining order, which can last up to three years.

Restraining orders are a serious matter, as employers are essentially asking the court to curtail an individual’s freedom. But such an order is a powerful tool that an employer may find necessary to protect the safety of its employees.

Workplace Solutions: Even though it may relatively easy to demonstrate a credible threat of violence and thus obtain a protective order, know that California courts protect all individuals’ liberty, including their freedom of speech. Obtaining an order to restrain that liberty requires a detailed factual showing.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s OSHA Compliance, Enforcement & Litigation Team.

By Brent I. Clark and Craig B. Simonsen

Seyfarth Synopsis: The National Institute for Occupational Safety and Health (NIOSH) recently released its results from a study conducted in 2016 and 2017 that looked at safety programs developed to prevent motor vehicle crashes.

The study included four focus groups conducted with thirty-three managers of employees that drive for work. The managers represented small businesses across four motor vehicle user groups: (1) first responders, (2) oil and gas workers, (3) light-vehicle drivers (e.g., workers who operate passenger vehicles for a variety of work purposes, such as salespeople, home health care workers, realtors, and food delivery workers), and (4) truck drivers.

NIOSH, in its Science Blog, related that vehicle crashes were a leading cause of workplace fatalities, with “1,252 deaths of vehicle drivers and passengers on public roads in 2016. In 2013, on-the-job crashes cost employers over $25 billion and led to 155,000 lost work days.”

The study found that the managers of truck and light vehicle drivers noted a range of minimal  approaches to safety, such as mandatory vehicle inspections. Of particular note on the topic of the effectiveness of training is that managers indicated that safety materials needed to be designed that take into account the limited time that they and their drivers can devote to safety training. “Drivers’ varied work schedules and intense workload limit opportunities for group discussions about roadway safety. Managers said they and their drivers prefer concise, highly visual, and interactive communication products, such as short videos and simulations.”

NIOSH concluded that despite the human and financial costs of crashes, safety programs developed to prevent motor vehicle crashes are unlikely to work unless they are designed with the employers’ needs and constraints in mind. “This is particularly true among smaller and midsize employers, which need additional resources and knowledge to be successful.”

For employers, it is important to have safety programs in place that protect company employees. Employers can be sure that, given a workplace accident, agency inspectors may well be reviewing the employer’s policy documents and training materials, and will likely interview the injured employee about her training and understanding of the materials.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By Joshua M. Henderson, Ilana R. Morady, Brent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis:  On March 9, 2018, the California Office of Administrative Law approved the new regulation that will require hotels and other lodging establishments (such as resorts and bed and breakfast inns) to implement new requirements to protect employees who perform housekeeping tasks from any “musculoskeletal injury.” The regulation will take effect on July 1, 2018.

We previously blogged on the new regulation adopted by the Cal/OSHA Standards Board (OSHSB) on January 18, 2018. The new regulation–“Hotel Housekeeping Musculoskeletal Injury Prevention”–is intended to address a workplace hazard confronted by housekeepers, namely, a “musculoskeletal injury,” which is defined as “acute injury or cumulative trauma of a muscle, tendon, ligament, bursa, peripheral nerve, joint, bone, spinal disc or blood vessel.”

The regulation was petitioned for by the labor union UNITE HERE and contains several union-friendly provisions. The regulation will take effect on July 1, 2018.

Substantially, under the new rules California hotel and other lodging establishments industry employers will be required to update their written Injury and Illness Prevention Plan (IIPP) to incorporate the following:

  • Must have a Musculoskeletal Injury Prevention Program (MIPP) in addition to the IIPP. The MIPP may be a standalone policy or incorporated into the IIPP.
  • The MIPP must be “readily accessible” to employees to review during their work shift. An electronic copy is sufficient if there are “no barriers to employee access” as a result. No such requirement exists for IIPPs.
  • By October 1, 2018, effected employers must complete an initial worksite evaluation to identify and address potential injury risks to housekeepers. This worksite evaluation as well as subsequent evaluations (at least annually) “shall include an effective means of involving housekeepers and their union representative in designing and conducting the worksite evaluation.”
  • The MIPP’s procedures for investigating musculoskeletal injuries to a housekeeper must allow for input from the housekeeper’s union representative as to whether any measures, procedures, or tools would have prevented the injury.
  • Records of worksite evaluations and other records required by the MIPP must be made available to a Cal/OSHA inspector within 72 hours of a request. There is no 72-hour deadline under the IIPP regulation.

California hotel and other lodging establishments industry employers now have until October 1, 2018, to roll-out their Musculoskeletal Injury Prevention Programs.  These MIPPs must pass the muster of Cal/OSHA inspectors, including the ability to provide records of worksite evaluations and other records required by the MIPP to Cal/OSHA within 72 hours of a request.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By Brent I. Clark, James L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis:  The Occupational Safety and Health Administration announced that it is pushing back the effective date of parts of the rule limiting workers’ exposure to beryllium until May, while it negotiates with manufacturers and groups that have sued over the rule.

In January 2017, OSHA issued new health standards addressing exposure to beryllium in all industries (the “Beryllium Rule”).  The general industry standard, 29 CFR 1910.1024, had an effective date of March 10, 2017.

Then in June 2017, OSHA published a Notice of Proposed Rulemaking proposing to revoke the ancillary provisions of the construction and shipyard standards, such as housekeeping and personal protective equipment requirements, but retain the new Beryllium Permissible Exposure Limit (PEL) of 0.2 µg/m3 over an 8-hour TWA and short-term exposure limit (STEL) of 2.0 µg/m3 in a 15-minute period.

In response to feedback from stakeholders, the Agency is considering additional technical updates to the January 2017 general industry standard, which would clarify and simplify compliance with requirements.

In a recently-released interpretation memo, Delay of Enforcement of the Beryllium Standards under 29 CFR 1910.1024, 29 CFR 1915.1024, and 29 CFR 1926.1124, OSHA notes that it has been in settlement discussions with parties that filed legal actions challenging the general industry standard.  “In order to provide additional time to conclude those negotiations, we have decided to delay enforcement of the general industry standard by 60 days until May 11, 2018.”

“Furthermore, to ensure employers have adequate notice before OSHA begins enforcing them, as well as in the interest of uniform enforcement and clarity for employers, we have decided to also delay enforcement of the PEL and STEL in the construction and shipyard standards until May 11, 2018.  No other parts of the construction and shipyard beryllium standards will be enforced without additional notice.”

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s OSHA Compliance, Enforcement & Litigation Team.

By Brent I. Clark, James L. Curtis, Ilana R. Morady, Patrick D. Joyce, Adam R. Young, and Daniel Birnbaum

Seyfarth Synopsis:  Here is today’s update from the presentations and room discussions at the ABA Occupational Safety and Health Law Committee’s 2018 Midwinter Meeting.

We continue to attend the ABA Occupational Safety and Health Law Meeting this week in Santa Monica, California.

A hot topic, discussed at today’s meeting, is sexual harassment in the workplace.  Panelists are discussing whether sexual harassment could constitute a serious workplace safety and health issue.  Studies show that pervasive harassment may manifest in physical symptoms in victimized employees.  The question becomes, when does sexual harassment evolve into workplace violence that presents OSHA liability?  There are currently no specific OSHA standards that address workplace violence or sexual harassment.  However, under the General Duty Clause of the Occupational Safety and Health Act, employers are required to provide their employees with a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious harm.”  As such, sexual harassment is on OSHA’s radar, and as more employees step forward, it is anticipated that more inspections will be opened from complaints.

The panel discussed specific industries, including healthcare, social services, hospitality, late night retail, construction, agriculture, and food processing, as those where sexual harassment as a workplace violence issue are statistically more likely.  OSHA will likely focus on these industries in evaluating future sexual harassment inspections.  As an example, the panel referenced a case in Region 3, where an inspection was opened when a pediatric services employee was sexually assaulted by a client’s father after complaints were made to the employer by other employees about the alleged abuser.  Companies should evaluate complaints and determine if sexual harassment in the workplace is foreseeable or preventable.

The panel also talked about efforts by local cities and industries that have made proactive steps to protect employees from sexual harassment.  As an example, Seattle, New York, and Chicago have all taken steps to provide hotel workers with “panic buttons” to help prevent attacks by hotel guests.  It is anticipated that these regulations will spread across the country, and span new industries as well.  Employers should stay aware of the newest regulations and industry practices to reduce the risk that employees will be harmed or that an OSHA inspection will be opened.

More to come from the conference tomorrow.…

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of Seyfarth’s OSHA Compliance, Enforcement & Litigation Team.

By Brent I. Clark, James L. Curtis, Ilana R. Morady, Patrick D. Joyce, Adam R. Young, and Daniel Birnbaum

Seyfarth Synopsis:  Here is today’s update from the presentations and room discussions at the ABA Occupational Safety and Health Law Committee’s 2018 Midwinter Meeting.

We are attending the ABA Occupational Safety and Health Law Meeting this week in Santa Monica, California.  Present are representatives from the OSH Review Commission, the MSH Review Commission, and the Solicitor’s Office.

Ann Rosenthal, Associate Solicitor for the Occupational Safety and Health Division, delivered remarks from the Solicitor’s Office and stressed that the change in administrations would not lessen enforcement efforts by OSHA.  Ms. Rosenthal discussed highlights from the Solicitor’s Office from the last year that included cases involving workplace violence, fall protection, and criminal penalties for employers.  It is anticipated that the Department of Labor will continue to focus its efforts on prosecuting these types of cases.  Ms. Rosenthal also indicated, while responding to questions, that the new administration is considering eliminating regulations under the beryllium rule and record-keeping rule.

Tom Galassi, Director, Directorate of Enforcement of OSHA, is also here and discussed key enforcement initiatives. Generally, Mr. Galassi echoed the general tone of Ms. Rosenthal’s remarks, emphasizing that OSHA is not slowing down in its enforcement efforts.  Accordingly, Mr. Galassi covered rising penalties, which continue to sharply increase.  Mr. Galassi highlighted that severe injury reports also continue to rise steadily, up from 10,887 to 11,590 reports last year.  Additionally, Mr. Galassi discussed two standards that were recently updated and have begun to be enforced by OSHA – the silica standard and walking work surfaces standard.  Both standards implement substantial burdens on employers and create compliance issues that impacts employers in a wide array of industries.

Mr. Galassi also stressed OSHA’s increasing budget and goal to increase the agency’s reach.  To that end the agency added over 70 employees last year comprised of enforcement and compliance personnel.  As such, employers should be sufficiently prepared for enforcement efforts that will continue to rise from these additional resources.

More to come from the conference tomorrow.…

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of Seyfarth’s OSHA Compliance, Enforcement & Litigation Team.

By Joshua M. Henderson, Ilana R. Morady, Brent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis:  The California Division of Occupational Safety and Health (DOSH) recently held advisory meetings on the Agency’s draft rules for the Marijuana/Cannabis Industry and for the Heat Illness Prevention in Indoor Places of Employment.  It is seeking public comments.

Marijuana/Cannabis Industry Rulemaking

The advisory meeting on the DOSH Marijuana/Cannabis Industry Rulemaking was to “consider … whether specific requirements are needed to address exposure to second-hand marijuana smoke by employees at facilities where on-site consumption of marijuana is permitted under B&P Code section 26200(d), and whether specific requirements are needed to address the potential risks of combustion, inhalation, armed robberies, or repetitive strain injuries.” Public commenting is open. The advisory committee must present its finding and recommendations to the Standards Board by October 1, 2018, at which point the Board render a decision regarding whether to adopt the marijuana/cannabis standards.

Heat Illness Prevention in Indoor Places of Employment

The advisory meeting on the DOSH Heat Illness Prevention in Indoor Places of Employment was to “develop a proposed regulation for minimizing heat-related illness among workers in indoor places of employment.”  At the meeting, the public had an opportunity to provide input on a revised discussion draft developed in consideration of the comments received on a previous discussion draft. A side-by-side comparison table is provided along with options for an Amended Section 3395 (Option A) or Creating Standalone Indoor Standard (Option B).

The Cal/OSHA Advisory Committees are currently accepting comments on both of these topics.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By Joshua M. Henderson, Ilana R. Morady, Brent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis:  The California Division of Occupational Safety and Health (DOSH) recently held an advisory meeting on the Agency’s draft rules for Workplace Violence Prevention in General Industry.  It is seeking public comments.

The meeting was to seek input on the new draft proposal to address workplace violence in general industry. If adopted, California would become the first state to issue general industry workplace violence rules. Currently, Cal/OSHA can only regulate workplace violence hazards through its “general duty clause” which provides that employers have a general duty to keep their workplaces safe from recognized hazards.

The December 4, 2017 draft proposed rules defines “workplace violence” as “any act of violence or threat of violence that occurs at the work site.”  Specifically under the proposal workplace violence includes:

  1. 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.
  2. 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.
  3. Four types of violence:

Type 1 violence means workplace violence committed by a person who has no legitimate business at the work site, and includes violent acts by anyone who enters the workplace with the intent to commit a crime.

Type 2 violence means workplace violence directed at employees by customers, clients, patients, students, inmates, or visitors.

Type 3 violence means workplace violence against an employee by a present or former employee, supervisor, or manager.

Type 4 violence means workplace violence committed in the workplace by someone who does not work there, but has or is known to have had a personal relationship with an employee.

The proposal would require covered employers to develop a Workplace Violence Prevention Plan that includes procedures for:

  1. Obtain the active involvement of employees and their representatives in developing and implementing the Plan, including their participation in identifying, evaluating, and correcting workplace violence hazards, designing and implementing training, and reporting and investigating workplace violence incidents.
  2. Methods the employer will use to coordinate implementation of the Plan with other employers whose employees work in same workplace, where applicable.
  3. Effective procedures for the employer to accept and respond to reports of workplace violence, including Type 3 violence, and to prohibit retaliation against an employee who makes such a report.
  4. Procedures to develop and provide the training.
  5. Procedures to identify and evaluate workplace violence hazards.
  6. Procedures to correct workplace violence hazards in a timely manner.
  7. Procedures for post-injury response and investigation.

The Cal/OSHA Advisory Committee is currently accepting comments on the topic.

Note also that California healthcare employers are currently regulated under the Violence Protection in Health Care standard, and will be required, by April 1, 2018, to comply with those provisions for implementing a Violence Prevention Plan and for training their employees.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By Joshua M. Henderson

Seyfarth Synopsis:  This past week, the Cal/OSHA Standards Board approved a new regulation that will require hotels and other lodging establishments (such as resorts and bed and breakfast inns) to implement new requirements to protect employees who perform housekeeping tasks from any “musculoskeletal injury.”

This new regulation–“Hotel Housekeeping Musculoskeletal Injury Prevention”–is intended to address a workplace hazard confronted by housekeepers, namely, a “musculoskeletal injury,” which is defined as “acute injury or cumulative trauma of a muscle, tendon, ligament, bursa, peripheral nerve, joint, bone, spinal disc or blood vessel.” The regulation was petitioned for by the labor union UNITE HERE and contains several union-friendly provisions. Before it can take effect, the regulation must pass the review and approval of the Office of Administrative Law to assure compliance with certain procedural rules. Once approved, the regulation should take effect in the next few months.

Currently, most California employers (including hotels) are required to have a written Injury and Illness Prevention Plan, which must include provisions related to health and safety training, identification and abatement of workplace hazards, and procedures for reporting unsafe working conditions. The new regulation imposes requirements for hotels above and beyond an IIPP:

  • Hotel employers must have a Musculoskeletal Injury Prevention Program (MIPP) in addition to the IIPP. The MIPP may be a standalone policy or incorporated into the IIPP.
  • The MIPP must be “readily accessible” to employees to review during their work shift. An electronic copy is sufficient if there are “no barriers to employee access” as a result. No such requirement exists for IIPPs.
  • Within three months of the effective date of the regulation, hotels must complete an initial worksite evaluation to identify and address potential injury risks to housekeepers. This worksite evaluation as well as subsequent evaluations (at least annually) “shall include an effective means of involving housekeepers and their union representative in designing and conducting the worksite evaluation.”
  • The MIPP’s procedures for investigating musculoskeletal injuries to a housekeeper must allow for input from the housekeeper’s union representative as to whether any measures, procedures, or tools would have prevented the injury.
  • Records of worksite evaluations and other records required by the MIPP must be made available to a Cal/OSHA inspector within 72 hours of a request. There is no 72-hour deadline under the IIPP regulation.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.

By Brent I. Clark, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Bureau of Labor Statistics (BLS) has found a seven percent increase in 2016 fatal injuries reported over those reported in 2015. BLS noted that this was the third consecutive increase in annual workplace fatalities.  The statistics show an ongoing struggle for employers with a number of occupational safety and health health hazards.

By industry or workplace, BLS found that work injuries involving transportation incidents remained the most common fatal event in 2016, accounting for 40 percent of all industries.  Workplace violence and other injuries by persons or animals increased 23 percent, becoming the “second-most common work related fatal event in 2016.” For more information about workplace violence we have frequently blogged on the topic.  See for instance, Airport Active Shooter Incident — What Can Happen in Just 15 Seconds, and What Business Needs to Know, OSHA Updates its Enforcement Procedures Directive for Exposure to Workplace Violence, Proposed Rule for Prevention of Workplace Violence in Healthcare and Social Assistance Industries, and NIOSH Offers Free Training Program to Help Employers Address Safety Risks Faced by Home Healthcare Workers.

In addition, exposure to harmful substances or environments rose 22 percent.  “Workplace homicides increased by 83 cases to 500 in 2016, and workplace suicides increased by 62 to 291. This is the highest homicide figure since 2010 and the most suicides since Census of Fatal Occupational Injuries (CFOI) began reporting data in 1992.”

Stunnningly, overdoses from the non-medical use of drugs or alcohol while on the job increased from 73 in 2011 to 217 in 2016. “Overdose fatalities have increased by at least 25 percent annually since 2012.”  Fatal injuries in the leisure and hospitality sector were up 32 percent and reached an “all-time series high in 2016.”  BLS concluded that this was largely due to a 40-percent increase in fatal injuries in the food services and drinking places industry.

Occupations with increases greater than 10 percent in the number of fatal work injuries in 2016 include:

  • Food preparation and serving related occupations (64 percent);
  • Installation, maintenance, and repair occupations (20 percent);
  • Building and grounds cleaning and maintenance occupations (14 percent); and
  • Sales and related occupations (11 percent).

Foreign-born workers made up about one-fifth of the total fatal work injuries. Thirty-seven percent of the workers were born in Mexico, followed by 19 percent from Asian countries.  Workers age 55 years and over had a higher fatality rate than other age group.

In response to the BLS Report, Loren Sweatt, Deputy Assistant Secretary for OSHA, commented that “[a]s President Trump recognized by declaring opioid abuse a Nationwide Public Health Emergency, the nation’s opioid crisis is impacting Americans every day at home and, as this data demonstrates, increasingly on the job.”  “The Department of Labor will work with public and private stakeholders to help eradicate the opioid crisis as a deadly and growing workplace issue.”

Employers in the industries identified in the CFOI Report, including oil and gas, construction, retail, mining, and others need to be mindful of OSHA’s and MSHA’s enhanced monitoring and inspection activities. Take steps to ensure that company safety and health policies and training are up-to-date and are being rigorously implemented. Be sure to have a plan in-place for when an agency inspector does come calling, so that the company is protected and any citations and liabilities are minimized.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.