The New York State Workplace Violence Prevention Act, enacted in 2006, requires public employers with at least 20 full-time permanent employees to develop and implement a written Workplace Violence Prevention Program, evaluate their workplaces to assess the risk of violence, and implement an annual training program concerning issues related to workplace violence.  The Act applies to all State employers and political subdivisions of the State, including public authorities, public benefit corporations, and all other governmental agencies or instrumentalities.  School districts and BOCES are already required to establish and maintain “school safety plans,” and are, therefore excluded from this requirement.

The New York State Department of Labor (“the DOL”) issued Regulations implementing the Act (“the Regulations”).  Those Regulations define “workplace violence” as “Any physical assault or acts of aggressive behavior occurring where a public employee performs any work-related duty in the course of his or her employment including but not limited to:  (i) an attempt or threat, whether verbal or physical, to inflict physical injury upon an employee; (ii) any intentional display of force which would give an employee reason to fear or expect bodily harm; (iii) intentional and wrongful physical contact with a person without his or her consent that entails some injury; or (iv) stalking an employee with the intent of causing fear of material harm to the physical safety and health of such employee when such stalking has arisen through and in the course of employment.” 

This memorandum reminds covered public employers of the steps they must take to comply with the requirements of the Act and Regulations. 

I. Workplace Violence Policy Statement

Employers must develop and implement a written workplace violence prevention policy statement and provide for full employee participation in this process through an authorized employee representative.  The policy statement should briefly describe the incident alert and notification policies for employees to follow in the event of a workplace violence incident.  The workplace violence policy statement must be posted where notices to employees are normally posted. 

II.   Risk Evaluation and Determination

Public employers are required to evaluate their workplace(s) to determine the existence of factors or situations that may place employees at risk of workplace violence.  The “workplace” includes “any location away from an employee’s domicile, permanent or temporary, where an employee performs any work-related duty in the course of his or her employment by an employer.”

The Regulations also require employers to work with the employee representative to evaluate the workplace to determine risk factors.  The Regulations include a non-exhaustive list of the following risk factors:    

• Employees working in public settings (e.g., social service workers, police officers, firefighters or other governmental workers and service workers);

• Employees working late night or early morning hours;

• Employees exchanging money with the public;

• Employees working alone or in small numbers;

• Employees working in a location with uncontrolled public access to the workplace; and

• Areas of previous security problems.

Employers must also review any past incidents of workplace violence to identify patterns or trends in the types and causes of injuries occurring in the workplace.  In addition, employers must review their occupational injury and illness logs and incident reports to identify injuries that may have resulted from workplace violence.  Employers should also survey employees at all levels regarding violent incidents (both reported and unreported) and assess relevant policies, work practices and work procedures that may impact the risk of workplace violence.  Finally, employers should evaluate physical workplace building security.

III. Written Workplace Violence Prevention Program

The Act requires that a public employer with 20 or more full-time permanent employees develop and implement a written Workplace Violence Prevention Program for its workplace(s) with the participation of the  employee representative. 

The written program must include a list of the risk factors identified by the employer and the employee representative in their risk evaluation.  The program must also describe the methods that the employer will use to prevent incidents of workplace violence.  Examples of applicable methods include, but are not limited to:

• Making high-risk areas more visible to more people;

• Installing additional or better external lighting;

• Installing video surveillance;

• Installing door buzzers and other alarms;

• Using drop safes or other methods to minimize cash on hand;

• Posting signs stating that limited cash is on hand;

• Providing training in conflict resolution and non-violent self-defense responses; and

• Establishing and implementing reporting systems for incidents of aggressive behavior.

The program must also contain:  a hierarchy of controls including engineering controls, work practice controls and personal protective equipment; the methods and means by which the employer will address each specific hazard identified in the workplace evaluation; a system to report any workplace violence incidents that occur in the workplace (the reports must be in writing and maintained for the annual program review); a written outline or lesson plan for employee program training; and a plan for program review and updates on an annual basis.  The review plan should set forth any mitigating steps taken in response to any incident of workplace violence.

IV. Employee Information and Training Program

Public employers must conduct employee training on the risk of workplace violence in their workplace(s), both at the time of the employee’s initial job assignment and at least annually thereafter.  Employee training must include, at a minimum:  (1) the requirements of the Regulations and the risk factors that were identified in the risk evaluation and determination; (2) the measures employees can take to protect themselves from the identified risks including specific procedures that the employer has implemented to protect employees, such as incident alert and notification procedures, appropriate work practices, emergency procedures and the use of security alarms and other devices; and (3) the details of the written Workplace Violence Prevention Program established and implemented by the employer. 

V. Reporting Systems and Enforcement

The Act requires employers to establish and implement reporting systems for incidents of workplace violence to ensure that all workplace violence incidents are reported in writing.  A workplace violence incident form can be in any format but, at a minimum, must contain the following information:

• Workplace location where the incident occurred;

• Time of day/shift when incident occurred;

• A detailed description of the incident, including events leading up to the incident and how the incident ended;

• Names and job titles of involved employees;

• Name or other identifier of other individual(s) involved;

• Nature and extent of injuries arising from the incident; and

• Names of witnesses.

Employers must conduct a review of workplace incident reports at least annually, with the participation of the employee representative, to identify trends in the types of incidents in the workplace and to review the effectiveness of mitigating actions taken.  Incident reports must be maintained for use in the annual program review and updates.

If the case is a “privacy concern case,” the employer should remove the name of the employee who was the victim of the workplace violence and enter “PRIVACY CONCERN CASE” in the space normally used for the employee’s name.  Privacy concern cases include the following:

• An injury or illness to an intimate body part or the reproductive system;

• An injury or illness resulting from a sexual assault;

• Mental illness;

• HIV infection;

• Needle stick injuries and cuts from sharp objects that are or may be contaminated with another person’s blood or other potentially infectious material; and

• Other injuries or illnesses, if the employee independently and voluntarily requests that his or her name not be entered on the report.

Any employee or his/her employee representative who believes that a serious violation of the employer’s Workplace Violence Prevention Program exists, or that imminent danger exists, must bring the matter to the attention of the supervisor in the form of a written notice.  The employer must then be given a reasonable opportunity to correct the activity, policy or practice.  Written notice to an employer is not, however, required where imminent danger exists to the safety of a specific employee or to the general health of a specific person, and the employee reasonably believes in good faith that reporting to a supervisor would not result in corrective action.

If, after notifying the supervisor and giving the employer a reasonable opportunity to correct the situation, the employee or the employee representative still believes that a serious violation of a Workplace Violence Prevention Program remains or that imminent danger exists, the employee may request an inspection by notifying the DOL’s Public Employee Safety and Health Bureau (PESH).  The notice and request must be in writing, set forth with reasonable particularity the ground(s) for the notice and be signed by the employee or his/her employee representative. 

VI. Retaliation Is Prohibited

The Act specifically prohibits public employers from retaliating against employees who:      (1) report an alleged serious violation to a supervisor; (2) request an inspection by the DOL; or (3) accompany DOL officials during an inspection.  Employees should be advised of this prohibition in the employer’s Workplace Violence Prevention Program or policy statement.

If you have any questions regarding the Act or Regulations, or require assistance with your Workplace Violence Prevention Program, please contact us.

THIS MEMORANDUM IS MEANT TO ASSIST IN THE GENERAL UNDERSTANDING OF CURRENT LAW.  IT IS NOT TO BE REGARDED AS LEGAL ADVICE.  THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.

© Lamb & Barnosky, LLP 2014