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Assembly Bill 2774 is intended to bring Cal/OSHA up to federal standards; citations expected to increase; employers encouraged to review/updates Illness Prevention Program

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Assembly Bill 2774, one of the most important pieces of occupational safety & health legislation, has been voted into law and is now in effect.

Assembly Bill 2774 Summary - What does it do?

Assembly Bill 2774 makes it easier for Cal/OSHA inspectors to establish serious violations and makes it easier for serious violations to survive an appeal with the Division of Occupational Safety & Health (DOSH).

The emergence of this Bill resulted from the Federal Government’s stance that Cal/OSHA’s prior classification process did not meet the standards of the Federal Government. On classifying violations, the Federal Government stated that Cal/OSHA "did not ensure that violations that would have been categorized as serious under federal standards are classified as serious by Cal/OSHA." Fed-OSHA also determined the Appeals Board made it too difficult for Cal/OSHA to establish serious violations, partly due to the Appeals Board's interpretation of "substantial probability" and its rules against expert testimony.

According to statistics provided by the U.S. Department of Labor, in 2009 Cal/OSHA classified 19% of violations as serious, compared to 77% for Fed-OSHA. The Government recommended Cal/OSHA take administrative, judicial, or legislative action to ensure consistency with Federal standards on classifying serious hazards. AB 2774 aims to address some of these criticisms.

What does it mean to you as the employer?

Currently, Section 6432 of the California Labor Code requires Cal/OSHA to establish a serious violation by proving that there is a "substantial probability that death or serious physical harm could result from a violation." The new law changes the "substantial probability" standard to "a realistic possibility."

In the past, Cal/OSHA has interpreted "substantial probability" to mean "more likely than not" or a likelihood of 51% or more. AB 2774 does not define "realistic possibility;" however, it is clear the new standard is intended to be a significantly lower likelihood of occurrence. Cal/OSHA's burden in proving serious violations is reduced by AB 2774 in the following ways:

1. AB 2774 expands the definition of "serious physical harm" as used in Section 6432 to include the following:

  • - Any in-patient hospitalization for purposes other than observation. (Prior law cited a 24-hour period must be met to be considered a serious violation).
  • - The loss of any member of the body.
  • - Any serious degree of permanent disfigurement.

Impairment sufficient to cause a part of the body or the function of an organ to become permanently and significantly reduced in efficiency on or off the job. Specific examples include second degree or worse burns, crushing injuries (with or without bone loss), respiratory illnesses, broken bones, and repetitive motion injuries. (This is a new requirement.)

2. The new law will also allow Cal/OSHA safety engineers and industrial hygienists to provide testimony and offer expert opinion regarding each element of a serious violation. This includes testimony on whether there is a "realistic possibility" that death or serious physical injury could result.

3. AB 2774 rewrites California Labor Code 6432, replacing current language with a rebuttable presumption that a serious violation exists if DOSH demonstrates there is a "reasonable possibility" that death or serious physical harm could result from the hazard. The Cal/OSHA inspector must make a reasonable attempt to consider a variety of different factors before issuing the citation. These factors may include:

  • - Employer training for employees and supervisors to prevent exposure to the hazard or similar hazards.
  • - Employer procedures for discovering, controlling access to and correcting the hazard or similar hazards.
  • - Supervision of employees exposed or potentially exposed to the hazard.
  • - Employer procedures for communicating health and safety rules and programs to employees.
  • - Any information the employer wishes to provide, including the employer's explanation of the alleged condition, why it believes that a serious violation does not exist, and why it believes that it will be able to establish the absence of employer knowledge.

The employer can rebut the alleged serious violation by demonstrating and proving, among other things, it took all of the steps a "reasonable and responsible" employer could be expected to take in the same situation during the pre-citation consultation process.

As part of this pre-citation consultation process, AB 2774 requires Cal/OSHA Inspectors to submit a form to the employer containing the alleged violation descriptions and soliciting the information identifying these factors at least 15 days prior to issuing a citation for a serious violation.

What are the implications?

  • - Since the initial burden on the Division to prove a serious violation has been lessened, the number of citations for serious violation citations issued by Cal/OSHA Inspectors is suspected to increase which would result in more penalties.
  • - Successful reductions in the classifications of citations and penalty amounts will be more difficult. The standard to overcome the rebuttable presumption is high and Cal/OSHA is now able to use "expert testimony." Effective and well implemented safety programs will play an important role in the appeals and pre-citation consultation process.
  • - Employers participating in the appeals process may have to pay to use "expert testimony" to counter the Cal/OSHA testimony.
  • - Open communication between the Cal/OSHA Inspector and the employer during the pre-citation consultation should provide greater consistency and predictability for employers with respect to the classifications of violations. This will prove to one of the most important parts of the new process, as employers will have a chance to defend against a citation before it is issued.
  • - We will likely see increased litigation in efforts to clarify the new standards.
  • - Workers' compensation benefits related to serious and willful injuries are likely to increase.

 

What can I do as an employer?

As noted in the latest Fed-OSHA report, Cal/OSHA's penalty structure remains the highest in the country, as the average first-time penalty for serious violations is four times higher than the national average. To be pro-active and to prepare for the new standards, we encourage California employers to consider the following:

  • - Review and update your Injury and Illness Prevention Program (IIPP) materials and all other safety policies and procedures.
  • - Review and ensure the implementation of your updated IIPP.
  • - Update training material to ensure training is provided on required topics and job specific hazards and exposures.
  • - Conduct and document training of both supervisors and employees regarding general safe practices and job specific hazards which may result serious injury.
  • - Conduct audits and inspections to determine the existence of hazards and serious violations and correct them immediately.
  • - Seek employee suggestions on how to improve your safety program and culture. Remind employees: "Safety is Everyone’s Responsibility."

According to DOSH Chief Lien Welsh, "the overall aim of the new law is to foster communication between the division and employers to abate and prevent serious hazards. The most important thing an employer can do is to provide the proper safety environment and understand its rights and responsibilities."

For questions regarding AB 2774 and how you can take steps to prevent a citation for a serious violation, please contact:

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