(1) Employers Must Develop a Workplace Violence Prevention Program. Effective July 1, 2024, nearly all California employers must develop and implement a workplace violence prevention plan (as part of their Injury and Illness Prevention Plans (“IIPP”)). Requirements for the plan include:
- Designating persons responsible for the plan.
- Effective procedures to obtain the active involvement of employees and authorized employee representatives in developing and implementing the plan.
- Initial training about the plan when first established and annual training.
- A system for identifying and evaluating workplace hazards.
- Methods and procedures to correct unsafe or unhealthy conditions and work practices in a timely fashion.
- An occupational health and safety training program to teach safe and healthy work practices and provide instruction specific to an employee’s particular hazards.
- A system for ensuring that employees comply with safe and healthy work practices, which may include disciplinary consequences.
- Procedures that allow for employees to identify, evaluate, and correct workplace violence hazards.
- Procedures for accepting and responding to reports of workplace violence, including a prohibition on retaliating against the employee making the report.
- Procedures to communicate workplace violence matters with employees, including how to report an incident without fear of retaliation.
- Procedures to investigate employee concerns.
- Procedures for responding to an actual or potential workplace violence emergency, including the means to alert employees of the emergency and obtain help from staff designated to respond, and evacuation and shelter plans; and
- Procedures for post-incident response and investigation.
Consistent with employers’ obligations under the IIPP requirements, they also must:
- Create a system for communicating occupational safety and health matters, such as meetings, training, posting, written communications, committees, or other means of communication.
- Conduct periodic inspections when new substances, processes, equipment, or procedures come into the workplace, and when the employer becomes aware of a new or previously unrecognized hazard.
- Provide employees with a copy of any workplace injury and illness reports no later than five (5) business days after the request for access is received.
Employers must keep records of workplace violence hazard identification, evaluation and correction, training records, a violent incident log for every workplace violence incident, and records of workplace violence incident investigation. These records must be maintained for at least five (5) years and produced to Cal/OSHA upon request.
What this means for you?
- Review and modify your workplace violence prevention program (or create one) to satisfy the new requirements;
- Incorporate workplace violence into your current IIPP training program; and
- Ensure processes are in place to comply with the various aspects of the program.
(2) Employers are Constrained by New Marijuana Use Protections. Effective January 1, 2024, California employers may not discriminate in hiring, termination, or any term or condition of employment, or otherwise penalizing a person:
- for their use of marijuana while off-duty or away from the worksite; or
- where an employer-required drug test detects the presence of “non-psychoactive cannabis metabolites” in their hair, blood, urine, or other bodily fluids (a requirement enacted previously that will take effect in 2024).
Employees still may be prohibited from possessing, using, or being impaired by cannabis on the job. The law expressly allows employers to make employment-related decisions based on tests that apply to current impairment, specifically scientifically valid pre-employment drug screening conducted through methods that do not screen for non-psychoactive cannabis metabolites, such as those that test for tetrahydrocannabinol (THC).
There are exceptions: (1) employees in the building and construction trades (good luck trying to define this); (2) nonprofit religious associations and nonprofit religious corporations; (3) positions that require U.S. Department of Defense clearance; and (4) applicants or employees subject to laws that mandate testing.
And before you set down your pipe . . . FEHA also has been amended to make it unlawful for an employer to request information from a job applicant relating to the applicant’s prior use of cannabis, including in the applicant’s criminal history, absent an applicable exception.
Does this mean that employers may not rely on prior convictions for possession of cannabis? Unclear. Recall, employers already are prohibited from relying on marijuana-related convictions that are more than two years old. Information about a person’s prior cannabis use obtained from their criminal history could be used if the employer is permitted to consider or inquire about that information under a specified provision of the FEHA or another state or federal law.
What is the impact of this new law?
- Ensure your drug and alcohol policies are revised to reflect this change;
- Make sure you are not screening for non-psychoactive marijuana components; and
- Review your criminal background check practices to ensure compliance with this new law.
(3) OSHA has updated recordkeeping requirements. OSHA announced new rules expanding the types of OSHA forms employers must submit via the Injury Tracking Application (“ITA”) in 2024, for the 2023 calendar year.
Employers across all industries were already required to submit OSHA Form 300A (Annual Summaries) for each establishment (worksite) with 250 or more employees. Establishments with an NAICS code from certain “high-hazard” industries with 20 to 249 employees also were required to report.
The new rules impose a new compliance obligation for establishments with 100 or more employees in “high-hazard” industries (including some employers on a new list), to electronically submit information from their Form 300A, Form 300 (OSHA 300 Log) and Form 301 (Injury and Illness Incident Reports for each row on the 300 log) to OSHA once a year. The industries covered by the new rule include various industries, including manufacturing, construction, health care, grocery stores, retail, warehousing, transportation, and performing arts. Employers with 250 or more employees that are not in the “high-hazard” industries are now not required to electronically submit recordkeeping information to OSHA.
The data that is collected will be published online for public access, although information related to identifying employees, such as names and contact information, will not be publicly released or released through FOIA requests. Information related to the number of injuries at a worksite and nature of those injuries, however, will be freely available to current and potential customers, union organizers, current and potential employees, and plaintiff’s lawyers.
