New Procedures for Cal/OSHA Serious Citations

On January 1, 2011, AB 2774 amended the California Labor Code Section 6432 to change the way Cal/OSHA issues serious violations to employers for safety violations. The new labor code changes the definition of serious injury or illness or serious physical harm as cited by Cal/OSHA. (This does not change the definition of a serious injury for reporting purposes under title 8, section 342.) It also changes how a serious violation is determined and investigated and the appeals process for Cal/OSHA citations.

The California Legislature implemented these changes to respond to federal OSHA concerns about the serious violations issued by Cal/OSHA. Federal OSHA suggested that Cal/OSHA and the California Occupational Safety and Health Appeals Board (OSHAB) could improve their handling and processing of serious violations.

Cal/OSHA issues regulatory, general, repeat, or serious citations to California employers for safety violations in the workplace. The definitions for regulatory and general citations have not changed. They are considered more benign and carry lower penalties than a “serious” violation. Serious violations can have penalties up to $25,000 compared to the $7,000 maximum for a general violation. Penalties may also apply for failing to correct a violation by the abatement date. In addition, serious and willful violations may also result in criminal charges and higher worker’s compensation liability.

According to the new definitions, serious violations cause an employee to suffer (or potentially suffer) serious injury or illness or serious physical harm. Serious physical harm is defined by the law as “any injury or illness, specific or cumulative, occurring in the place of employment or in connection with employment, that results in:

Inpatient hospitalization for purposes other than medical observation.
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, including, but not limited to, depending on the severity, second-degree or worse burns, crushing injuries including internal injuries even though skin surface may be intact, respiratory illnesses, or broken bones.

Serious physical harm can also be caused by a single, repetitive practice, means, method, operation, or process.

Along with these new criteria to determine serious violations, Cal/OSHA inspectors will be reviewing employer safety programs, including the Injury and Illness Prevention Program, for the following:

Programs for training workers and supervisors about preventing employee exposures to hazards.
Programs to find, limit access to, and correct hazards in the workplace.
Programs to supervise employees exposed or potentially exposed to hazards.
Programs to communicate about safety rules and programs with employees.

The new law states that there is a “rebuttable presumption” that a serious violation exists in your workplace if Cal/OSHA can demonstrate a “realistic possibility that death or serious physical harm could result from the actual hazard created by the violation." In addition, Cal/OSHA Safety Engineers and Industrial Hygienists are going to be allowed to testify as experts during appeals processes as long as they can demonstrate that their training is current. These changes will make it harder for employers to win an appeal.

Employers may give information to Cal/OSHA disputing a violation before citation or during the appeals process. Employers must demonstrate that they didn’t know of the violation. They must also demonstrate that they took all the steps possible to anticipate and prevent the violation and that they corrected the violation as soon as it was discovered.

Tips to prevent and address potential Cal/OSHA serious violations in your workplace:

Review your IIPP to make sure it is current.
Ensure your IIPP addresses hazard identification, training, and communication.
Conduct regular hazard assessments through site safety inspections and job hazard analyses.
Evaluate your hazard reporting methods for employees to report safety concerns and hazards.
Know how to respond to a Cal/OSHA inspection.
Know that you have the right to appeal a Cal/OSHA citation and the necessary steps to take.

The above evaluations and/or recommendations are for general guidance only and should not be relied upon for legal compliance purposes. They are based solely on the information provided to us and relate only to those conditions specifically discussed. We do not make any warranty, expressed or implied, that your workplace is safe or healthful or that it complies with all laws, regulations or standards.