With the passage of A.B. 30, California became the first state to require all acute-care hospitals and skilled-nursing facilities to develop and implement comprehensive workplace violence prevention plans. After years of wrangling with California’s Division of Occupational Safety and Health (“Cal OSHA”), the law became effective on April 1, 2018.

This statute was conceived by Cal OSHA, in conjunction with unions such as the California Nurses Association to address the high risk of workplace injuries faced by health care workers daily. Overall, health care workers suffer the greatest number of workplace injuries, with over 650,000 individuals injured each year. Violence in the health care industry, however, is historically underreported; one survey estimated that just 19% of all violent events are reported.

Under the law, affected employers in the health care industry must prepare a workplace violence prevention plan that includes:

  1. Annual personnel education and training regarding workplace violence;
  2. A system for responding to and investigating violent or potentially violent incidents; and
  3. Procedures for annual assessment and evaluation of factors that could help to prevent workplace violence.

Employers must provide annual education and training to all employees at their facility who administer direct patient care, including physicians and temporary employees. This training must include, but not be limited to, information regarding:

  • Identifying potentially harmful and violent situations and appropriate responses thereto;
  • Reporting violent incidents to law enforcement officials; and
  • Resources available to employees coping with the aftermath of a violent incident, such as critical incident stress debriefing and/or employee assistance programs.

Employers’ annual assessment identifying the factors that could possibly minimize the number of incidents of workplace violence should include a review of staffing and staffing patterns; the sufficiency of security systems at the facility; job design, equipment, and facilities; and areas of high security risk including entry and exit points for employees during late-night and early-morning shifts and employee parking lot safety.

Additionally, employers must develop these workplace prevention plans with input from their employees and any applicable collective bargaining agents. Employers are also expressly prohibited from taking punitive or retaliatory action against employees for reporting violent incidents.

Employers, however, should be aware of the dichotomy between interests regulated by Cal OSHA and by the Centers for Medicare and Medicaid Services (CMS). While Cal OSHA creates rules to ensure health care workers have a safe work environment free from harm, CMS creates rules to control aggressive patients in order to protect patients’ rights.  These competing interests often create conflicting obligations for health care facilities.  With Cal OSHA designating health care as a high risk industry for workplace violence and CMS focusing heavily on patient safety and patient rights, health care facilities must carefully navigate these competing obligations to appropriately protect both their employees and their patients.

Employers with affected health care operations in California should consult counsel for assistance with the development of a legally-compliant violence prevention plan and annual training materials in light of this new regulation.

The Department of Fair Employment and Housing (DFEH) recently released a brief, nine-page guide for California employers, which was prepared in conjunction with the California Sexual Harassment Task Force.  This guide is intended to assist employers in developing an effective anti-harassment program, including information about how to properly investigate reports of harassment and understand what recourse is available.  The guide addresses all forms of workplace harassment, including harassment based on sex.

Specifically, the guide provides employers with information regarding the particular components for an effective anti-harassment program in the workplace. The DFEH also gives employers step-by-step guidance for how to properly handle harassment complaints and any resulting investigations.  The guide discusses topics such as confidentiality during the investigation, the timeliness of an investigation, and investigator qualifications and training.  In its discussion of proper investigations, the DFEH provides nine “credibility factors” which an investigator may utilize in making a determination. These factors include a party’s motive to lie, any history of dishonesty, the manner of testimony – including hesitant speech and indirect answers – and the party’s demeanor during the investigation.  The guide also addresses what employers should do in unusual situations, such as: what to do when the target of harassment asks an employer not to act, how to investigate anonymous complaints, and how to handle retaliation.  The DFEH emphasizes the employer’s legal obligation to prevent and correct unlawful harassing behavior, and provides information regarding remedial measures. While some of these tips may seem intuitive, this guide is a good refresher for even the savviest of employers.

In conjunction with the guide, the DFEH also released an easy-to-follow brochure and corresponding poster specifically addressing sexual harassment, which employers can provide to their employees, in compliance with California Government Code section 12950(b). The brochure and poster echo many of the same tips as the guide, but focus solely on sexual harassment.  The poster and brochure include an explanation of what constitutes sexual harassment, provide examples of harassing behavior that may occur in the workplace, detail the civil remedies for harassing conduct, and outline an employer’s responsibilities and liability when allegations of sexual harassment are made.

Employers should utilize these DFEH resources when investigating and responding to claims of harassment made in the workplace.

Each year between October and May, millions of people contract the flu. Recent estimates suggest that up to 111 million workdays are lost during the flu season each year — at an estimated $7 billion per year in sick days and lost productivity.[1]  In light of the significant impact the flu can have on human capital and workplace productivity, many employers – especially those with employees who frequently interact with members of the public through the course and scope of their employment, such as health care providers, retailers, and educators – are beginning to implement policies mandating flu shots for all employees. The administration of an annual flu vaccine can substantially reduce the risk of contracting the flu and spreading it to others. During the 2015-2016 flu season, the Center for Disease Control estimates that flu vaccinations prevented approximately 5.1 million illnesses and 2.5 million flu-associated medical visits. However, as discussed in our HEAL Take 5 December 2016 newsletter and last month’s blog post, a recent influx of Equal Employment Opportunity Commission (EEOC) lawsuits alleging religious discrimination and failure to accommodate under Title VII highlight the challenges employers face when implementing mandatory flu vaccination policies.

On September 22, 2016, the EEOC filed a lawsuit against Saint Vincent Health Center in Erie, Pennsylvania alleging religious discrimination on behalf of six Saint Vincent former employees, asserting that the hospital refused to grant them religious-based exemptions from a mandatory flu vaccine policy and then discharged the employees when they refused the vaccination. EEOC v. St. Vincent Health Ctr., No. 16-224 (W.D. Pa. Sept. 22, 2016).  In December 2016, Saint Vincent settled the suit for $300,000 and offered reinstatement to the terminated employees. Further, Saint Vincent agreed on a going forward basis to grant exemptions to its mandatory flu vaccine policy to all employees who request one due to sincerely held religious beliefs unless the hospital can demonstrate an undue hardship to its operations. The hospital agreed that it would not deny any accommodation requests solely because it disagrees with an employee’s stated beliefs, thinks the belief are unfounded, or that the beliefs are not based on an official religion or denomination. Additionally, Saint Vincent agreed to notify its employees of their right to request a religious exemption to any mandatory vaccination policy, implement appropriate procedures for considering such accommodation requests, and provide training regarding Title VII reasonable accommodation to certain personnel.

Saint Vincent is not the only employer to recently be targeted by the EEOC as a result of its mandatory flu vaccine policy. Two similar suits are pending in North Carolina and Massachusetts. See EEOC v. Mission Hosp., Inc., No. 1:16-CV-00118 (W.D.N.C. Apr. 28, 2016); EEOC v. Baystate Med. Ctr., Inc., No. 3:16-cv-30086 (D. Mass. June 6, 2016).  In both of those suits, the EEOC has alleged similar violations of Title VII due to a failure to accommodate the religious practices of employees.

While it is uncertain how ardently the EEOC will pursue these cases under the new administration, individual employees remain able to pursue claims for religious discrimination on their own behalf. Moreover, in addition to Title VII compliance, employers risk running afoul of the Americans With Disabilities Act (ADA) and similar state laws if they do not consider accommodations for employees who choose not to be vaccinated as a result of existing medical conditions.  The recent uptick in cases on this issue makes clear that employers should be cautious when developing mandatory flu vaccine policies and should consult legal counsel before implementing any such policy (or refusing to grant an exception to the policy) to insure its compliance with Title VII, the ADA, and comparable state or local law.  Employers should also work with employees to think outside the box regarding possible accommodations when an employee expresses an objection to the policy due to a sincerely held religious belief or for medical reasons.  Among the available accommodations a hospital may consider are the use of a surgical mask or transfer to a non-patient-facing position.

[1] Statistics referenced herein are taken from the CDC website.