Amended in Senate March 25, 2014

Senate Bill No. 1299

Introduced by Senator Padilla

February 21, 2014

An act to begin delete amend end delete begin insert add end insert Section begin delete 6401.7 of end delete begin insert 6401.8 end insert begin insert to end insert the Labor Code, relating to occupational safety and health.

LEGISLATIVE COUNSEL’S DIGEST

SB 1299, as amended, Padilla. begin delete Injury prevention programs. end delete begin insert Workplace violence prevention plans. end insert

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Existing law regulates the operation of health facilities, including hospitals.

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The California Occupational Safety and Health Act of 1973 imposes safety responsibilities on employers and employees, including the requirement that an employer establish, implement, and maintain an effective injury prevention program, and makes specified violations of these provisions a crime.

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This bill would require the Occupational Safety and Health Standards Board, no later than July 1, 2015, to adopt standards developed by the Division of Occupational Safety and Health that require specified types of hospitals, including a general acute care hospital or an acute psychiatric hospital, to adopt a workplace violence prevention plan as a part of the hospital’s injury and illness prevention plan to protect health care workers and other facility personnel from aggressive and violent behavior. The bill would require the standards to include prescribed requirements for a plan. The bill would require the division, by January 1, 2017, and annually thereafter, to post a report on its Internet Web site containing specified information regarding violent incidents at hospitals.

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Because this bill would expand the scope of a crime, the bill would impose a state-mandated local program.

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The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

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This bill would provide that no reimbursement is required by this act for a specified reason.

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Existing law requires an employer to establish, implement, and maintain an effective injury prevention program, as prescribed.

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This bill would make a nonsubstantive change to that provision.

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Vote: majority. Appropriation: no. Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

The people of the State of California do enact as follows:

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begin insert SECTION 1. end insert   

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begin insert Section 6401.8 is added to the end insert begin insert Labor Code end insert begin insert , to
read: end insert

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begin insert 6401.8. end insert   

(a) The standards board, no later than July 1, 2015,
shall adopt standards developed by the division that require a
hospital licensed pursuant to subdivision (a), (b), or (f) of Section
1250 of the Health and Safety Code to adopt a workplace violence
prevention plan as a part of its injury and illness prevention plan
to protect health care workers and other facility personnel from
aggressive and violent behavior.

(b) The standards adopted pursuant to subdivision (a) shall
include all of the following:

(1) A requirement that the workplace violence prevention plan
be in effect at all times in all patient care units, including inpatient
and outpatient settings and clinics on the hospital’s license.

(2) A definition of workplace violence that includes, but is not
limited to, both of the following:

(A) The use of physical force against a hospital 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.

(B) An incident involving the use of a firearm or other dangerous
weapon, regardless of whether the employee sustains an injury.

(3) A requirement that a workplace violence prevention plan
include, but not be limited to, all of the following:

(A) Personnel education and training policies that require all
health care workers who provide direct care to patients to, at least
annually, receive education and training that is designed to provide
an opportunity for interactive questions and answers with a person
knowledgeable about the workplace violence prevention plan. The
education and training shall cover topics that include, but are not
limited to, the following:

(i) How to recognize potential for violence, and when and how
to seek assistance to prevent or respond to violence.

(ii) How to report violent incidents to law enforcement.

(iii) Any resources available to employees for coping with
incidents of violence, including, but not limited to, critical incident
stress debriefing or employee assistance programs.

(B) A system for responding to, and investigating violent
incidents and situations involving violence or the risk of violence.

(C) A system to, at least annually, assess and improve upon
factors that may contribute to, or help prevent workplace violence,
including, but not limited to, the following:

(i) Staffing, including staffing patterns and patient classification
systems that contribute to, or are insufficient to address, the risk
of violence.

(ii) Sufficiency of security systems, including security personnel
availability.

(iii) Job design, equipment, and facilities.

(iv) Security risks associated with specific units, areas of the
facility with uncontrolled access, late-night or early morning shifts,
and employee security in areas surrounding the facility such as
employee parking areas.

(4) A requirement that all workplace violence prevention plans
be developed in conjunction with affected employees, including
their recognized collective bargaining agents, if any.

(5) A requirement that all temporary personnel to be oriented
to the workplace violence prevention plan.

(6) Provisions prohibiting hospitals from disallowing an
employee from, or taking punitive or retaliatory action against an
employee for, seeking assistance and intervention from local
emergency services or law enforcement when a violent incident
occurs.

(7) A requirement that hospitals document, and retain for a
period of five years, a written record of any violent incident against
a hospital employee, regardless of whether the employee sustains
an injury, and regardless of whether the report is made by the
employee who is the subject of the violent incident or any other
employee.

(8) A requirement that a hospital report violent incidents to the
division. If the incident results in injury, 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, the hospital shall report the incident to the division
within 24 hours. All other incidents of violence shall be reported
to the division within 72 hours.

(c) By January 1, 2017, and annually thereafter, the division,
in a manner that protects patient and employee confidentiality,
shall post a report on its Internet Web site containing information
regarding violent incidents at hospitals, that includes, but is not
limited to, the total number of reports, and which specific hospitals
filed reports, pursuant to paragraph (7) of subdivision (b), the
outcome of any related inspection or investigation, the citations
levied against a hospital based on a violent incident, and
recommendations of the division on the prevention of violent
incidents at hospitals.

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begin insert SEC. 2. end insert   

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No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

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SECTION 1.  

Section 6401.7 of the Labor Code is amended to
read:

6401.7.  

(a) Each employer shall establish, implement, and
maintain an effective injury prevention program. The program
shall be written, except as provided in subdivision (e), and shall
include, but not be limited to, the following elements:

(1) Identification of the person or persons responsible for
implementing the program.

(2) The employer’s system for identifying and evaluating
workplace hazards, including scheduled periodic inspections to
identify unsafe conditions and work practices.

(3) The employer’s methods and procedures for correcting
unsafe or unhealthy conditions and work practices in a timely
manner.

(4) An occupational health and safety training program designed
to instruct employees in general safe and healthy work practices
and to provide specific instruction with respect to hazards specific
to each employee’s job assignment.

(5) The employer’s system for communicating with employees
on occupational health and safety matters, including provisions
designed to encourage employees to inform the employer of
hazards at the worksite without fear of reprisal.

(6) The employer’s system for ensuring that employees comply
with safe and healthy work practices, which may include
disciplinary action.

(b) The employer shall correct unsafe and unhealthy conditions
and work practices in a timely manner based on the severity of the
hazard.

(c) The employer shall train all employees when the training
program is first established, all new employees, and all employees
given a new job assignment, and shall train employees whenever
new substances, processes, procedures, or equipment are introduced
to the workplace and represent a new hazard, and whenever the
employer receives notification of a new or previously unrecognized
hazard. An employer in the construction industry who is required
to be licensed under Chapter 9 (commencing with Section 7000)
of Division 3 of the Business and Professions Code may use
employee training provided to the employer’s employees under a
construction industry occupational safety and health training
program approved by the division to comply with the requirements
of subdivision (a) relating to employee training, and shall only be
required to provide training on hazards specific to an employee’s
job duties.

(d) The employer shall keep appropriate records of steps taken
to implement and maintain the program. An employer in the
construction industry who is required to be licensed under Chapter
9 (commencing with Section 7000) of Division 3 of the Business
and Professions Code may use records relating to employee training
provided to the employer in connection with an occupational safety
and health training program approved by the division to comply
with this subdivision, and shall only be required to keep records
of those steps taken to implement and maintain the program with
respect to hazards specific to an employee’s job duties.

(e) (1) The standards board shall adopt a standard setting forth
the employer’s duties under this section, on or before January 1,
1991, consistent with the requirements specified in subdivisions
(a), (b), (c), and (d). The standards board, in adopting the standard,
shall include substantial compliance criteria for use in evaluating
an employer’s injury prevention program. The board may adopt
less stringent criteria for employers with few employees and for
employers in industries with insignificant occupational safety or
health hazards.

(2) Notwithstanding subdivision (a), for employers with fewer
than 20 employees who are in industries that are not on a
designated list of high hazard industries and who have a workers’
compensation experience modification rate of 1.1 or less, and for
any employers with fewer than 20 employees who are in industries
that are on a designated list of low hazard industries, the board
shall adopt a standard setting forth the employer’s duties under
this section consistent with the requirements specified in
subdivisions (a), (b), and (c), except that the standard shall only
require written documentation to the extent of documenting the
person or persons responsible for implementing the program
pursuant to paragraph (1) of subdivision (a), keeping a record of
periodic inspections pursuant to paragraph (2) of subdivision (a),
and keeping a record of employee training pursuant to paragraph
(4) of subdivision (a). To any extent beyond the specifications of
this subdivision, the standard shall not require the employer to
keep the records specified in subdivision (d).

(3) (A) The division shall establish a list of high hazard
industries using the methods prescribed in Section 6314.1 for
identifying and targeting employers in high hazard industries. For
purposes of this subdivision, the “designated list of high hazard
industries” shall be the list established pursuant to this paragraph.

(B) For the purpose of implementing this subdivision, the
Department of Industrial Relations shall periodically review, and
as necessary revise, the list.

(4) For the purpose of implementing this subdivision, the
Department of Industrial Relations shall also establish a list of low
hazard industries, and shall periodically review, and as necessary
revise, that list.

(f) The standard adopted pursuant to subdivision (e) shall
specifically permit employer and employee occupational safety
and health committees to be included in the employer’s injury
prevention program. The board shall establish criteria for use in
evaluating employer and employee occupational safety and health
committees. The criteria shall include minimum duties, including
the following:

(1) Review of the employer’s periodic, scheduled worksite
inspections; investigation of causes of incidents resulting in injury,
illness, or exposure to hazardous substances; and investigation of
any alleged hazardous condition brought to the attention of any
committee member. When determined necessary by the committee,
the committee may conduct its own inspections and investigations.

(2) (A) Upon request from the division, verification of
abatement action taken by the employer as specified in division
citations.

(B) If an employer’s occupational safety and health committee
meets the criteria established by the board, it shall be presumed to
be in substantial compliance with paragraph (5) of subdivision (a).

(g) The division shall adopt regulations specifying the
procedures for selecting employee representatives for
employer-employee occupational health and safety committees
when these procedures are not specified in an applicable collective
bargaining agreement. No employee or employee organization
shall be held liable for any act or omission in connection with a
health and safety committee.

(h) The employer’s injury prevention program, as required by
this section, shall cover all of the employer’s employees and all
other workers who the employer controls or directs and directly
supervises on the job to the extent these workers are exposed to
worksite and job assignment specific hazards. Nothing in this
subdivision shall affect the obligations of a contractor or other
employer that controls or directs and directly supervises its own
employees on the job.

(i) When a contractor supplies its employee to a state agency
employer on a temporary basis, the state agency employer may
assess a fee upon the contractor to reimburse the state agency for
the additional costs, if any, of including the contract employee
within the state agency’s injury prevention program.

(j) (1) The division shall prepare a Model Injury and Illness
Prevention Program for Non-High-Hazard Employment, and shall
make copies of the model program prepared pursuant to this
subdivision available to employers, upon request, for posting in
the workplace. An employer who adopts and implements the model
program prepared by the division pursuant to this paragraph in
good faith shall not be assessed a civil penalty for the first citation
for a violation of this section issued after the employer’s adoption
and implementation of the model program.

(2) For purposes of this subdivision, the division shall establish
a list of non-high-hazard industries in California. These industries,
identified by their Standard Industrial Classification Codes, as
published by the United States Office of Management and Budget
in the Manual of Standard Industrial Classification Codes, 1987
Edition, are apparel and accessory stores (Code 56), eating and
drinking places (Code 58), miscellaneous retail (Code 59), finance,
insurance, and real estate (Codes 60-67), personal services (Code
72), business services (Code 73), motion pictures (Code 78) except
motion picture production and allied services (Code 781), legal
services (Code 81), educational services (Code 82), social services
(Code 83), museums, art galleries, and botanical and zoological
gardens (Code 84), membership organizations (Code 86),
engineering, accounting, research, management, and related
services (Code 87), private households (Code 88), and
miscellaneous services (Code 89). To further identify industries
that may be included on the list, the division shall also consider
data from a rating organization, as defined in Section 11750.1 of
the Insurance Code, and all other appropriate information. The list
shall be established by June 30, 1994, and shall be reviewed, and
as necessary revised, biennially.

(3) The division shall prepare a Model Injury and Illness
Prevention Program for Employers in Industries with Intermittent
Employment, and shall determine which industries have historically
utilized seasonal or intermittent employees. An employer in an
industry determined by the division to have historically utilized
seasonal or intermittent employees shall be deemed to have
complied with the requirements of subdivision (a) with respect to
a written injury prevention program if the employer adopts the
model program prepared by the division pursuant to this paragraph
and complies with any instructions relating thereto.

(k) With respect to any county, city, city and county, or district,
or any public or quasi-public corporation or public agency therein,
including any public entity, other than a state agency, that is a
member of, or created by, a joint powers agreement, subdivision
(d) shall not apply.

(l) Every workers’ compensation insurer shall conduct a review,
including a written report as specified below, of the injury and
illness prevention program (IIPP) of each of its insureds with an
experience modification of 2.0 or greater within six months of the
commencement of the initial insurance policy term. The review
shall determine whether the insured has implemented all of the
required components of the IIPP, and evaluate their effectiveness.
The training component of the IIPP shall be evaluated to determine
whether training is provided to line employees, supervisors, and
upper level management, and effectively imparts the information
and skills each of these groups needs to ensure that all of the
insured’s specific health and safety issues are fully addressed by
the insured. The reviewer shall prepare a detailed written report
specifying the findings of the review and all recommended changes
deemed necessary to make the IIPP effective. The reviewer shall
be or work under the direction of a licensed California professional
engineer, certified safety professional, or a certified industrial
hygienist.

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