Workplace Violence Reports: Balancing Access and Privacy

In 2023, New York State amended the Public Employer Workplace Violence Prevention Act (“WVPA”) to include public school districts and BOCES, effective January 2024. Among other obligations, the WVPA mandates public employers implement a workplace violence prevention program, maintain a workplace violence reporting procedure, and review those reports annually “with the participation of the authorized employee representative” to identify trends in the types of incidents in the workplace and assess the effectiveness of corrective measures.

While many districts have shared a summary of the incidents identified in the reports, they have not shared the actual incident report forms for privacy reasons. The Public Employee Safety and Health Bureau (PESH) has taken the position that the unredacted incident report forms must be shared with union representatives as part of the annual review. A summary or spreadsheet of the reports is not enough. This requirement raises concerns about student privacy under FERPA and the confidentiality of employee health information.

Incident Report Forms
PESH representatives have indicated that many incident report forms contain more information than required but have not accepted that as a basis for redacting or withholding the forms. School districts and BOCES should therefore review their forms to avoid collecting unnecessary information. Under the regulations, the form must include: (1) the location where the incident occurred; (2) the time of day or shift; (3) a detailed description of the incident, including what led up to it and how it ended; (4) the names and job titles of the employees involved; (5) the name or other identifier of any other individuals involved; (6) the nature and extent of any injuries; and (7) the names of any witnesses.

Privacy Concerns
Employees completing the forms may not realize that the form will be shared with union representatives. The regulations require employers to redact an employee’s name as a “privacy concern case” for certain injuries, but the scope is limited. However, employees have the right to request that their name is not shared as part of the review. The request must be “independent and voluntary”. Consider adding a checkbox directly under the employee’s name explaining this option and allowing the affected employee to request removal of his/her name from copies shared during the annual review. Make clear that the request does not make the entire report confidential.

FERPA
Many incident reports involve staff interactions with students. Sharing identifiable student information may implicate FERPA and risk stigmatizing students. In order to protect student identities, PESH has agreed that a student name does not need to appear on the form as long as there is an identifier that can be matched to the student. If a staff member completes the incident report form and identifies a student or students, replace them with identifiers before sharing it. The identifier need not be a student ID number or otherwise linked to the district’s database.

Annual Review
Many public employers have multiple bargaining units and often hold one review session with all union representatives. PESH has confirmed that the duty to share incident reports applies only to the union in which the employee is a member. A district with several bargaining units does not need to give every union every report. Consider structuring your annual reviews accordingly.

If you have questions about your district’s form, the annual review process, or other issues involving your WPVA policy and its implementation, please contact our office. We are happy to help.