Draft Regulation Broader than Legislation

Cal/OSHA held the first open discussion of its workplace violence safety regulation for general industry at an all-day advisory committee meeting on January 24. A California Chamber of Commerce-led coalition of employers presented comments and concerns about the proposed draft rule.

Most California employers will already be aware of workplace safety obligations because of 2023’s SB 553 (Cortese; D-San Jose), which created vast new obligations across nearly all sectors in Labor Code Section 6401.9. This legislation created new obligations for training, and additional obligations whenever a workplace violence event — defined loosely as any event involving verbal threats or physical violence — occurs in the workplace.

Changes in Draft Rule

Now, Cal/OSHA is creating regulations based on that legislation, and is looking at some significant changes to broaden present workplace violence prevention obligations. Employers’ representatives, union representatives, regulators, and members of the public discussed the range of changes from present law that Cal/OSHA is proposing. Although there were a variety of changes proposed, they can be broadly summarized as:

• Adding specific lists of compliance obligations, hazards, and engineering controls where present law allows more flexibility; and
• Adding new requirements for what employees can and can’t be asked to do.

Employer representatives pushed for no new obligations, given that many employers just finished training their staff on SB 553’s obligations, and it is too soon to see the net effect of those new obligations. Labor advocates pushed for broader obligations, including obligations for more staffing and more protection from any potential dangers.

Removed from Legislation

Notably, many of the changes that Cal/OSHA proposed in the new regulatory text had been considered during the legislative debate around SB 553 in 2023 but were removed after discussions with Cal/OSHA staff and the administration.

For example: SB 553 had proposed banning any employer from “require[ing] or encourage[ing] employees to confront persons suspected of committing a criminal act or persons suspected of engaging in workplace violence.”

This provision had been of great concern to employers — particularly in the retail sector — because of how broadly the word “confront” could be interpreted. Labor advocates had urged that “confront” be read as prohibiting even verbal comments — making even a policy of asking an angry individual or suspected shoplifter to leave the store potentially a violation as “confronting” the individual.

Trauma Counseling

Another troubling suggestion for employers was the draft rule’s addition of a new requirement to provide “individual trauma counseling” after any workplace violence event.

The CalChamber and others objected vigorously on numerous grounds, noting that: trauma counseling is already covered under workers’ compensation; counselors are in short supply in California; and small businesses cannot absorb the obligation to provide individual counseling for an undefined length of time.

Although Cal/OSHA staff appeared to acknowledge these concerns, it remains unclear whether the proposal will be removed in the next draft of the proposed regulation.

What’s Next

Looking forward, employers should not expect any changes to their workplace violence obligations this year. Cal/OSHA will discuss and adjust their proposed draft through 2025, and is expected to vote to adopt any potential changes in late 2026.

The CalChamber will continue to advocate in the coming months to make sure that, to the extent any changes are made from present law, they are feasible and affordable for California employers to implement.

Staff Contact: Robert Moutrie