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California: New law expected to strengthen enforcement of workplace safety
California employers will likely see more citations for "serious violations" and find it tougher to appeal them thanks to a law that went on the books this year. The statute clarifies the definition of a serious citation, provides new guidance for the appeals board in cases where the issuance of a serious citation is in question, and establishes procedures for notifying employers of the possibility they may face a citation, regulators say.
A.B. 2774 was signed into law after an investigation and evaluation by the federal OSHA that was highly critical of certain elements of California's OSHA program. The investigation had been prompted by an open letter from Cal/OSHA staff members expressing their concerns about the state agency's ability to ensure safety and health in California workplaces and its ability to hold employers accountable for serious workplace injuries. California is one of 27 jurisdictions that has an OSHA-approved state plan. Cal/OSHA issues citations with civil penalties to employers for alleged violations of its standards.
Critics said under the previous statute, too many citations issued after serious injuries or fatalities were eventually reclassified as lesser, general violations, according to California Assembly member Sandre R. Swanson, chair of the Committee on Labor and Employment, and sponsor of the new statute. He also noted that federal data indicated California's serious citation violations were at 19 percent compared to an average of 43 percent for other state plans and 77 percent for the federal government. A.B. 2774 revamps the process by which serious violations are cited by Cal/OSHA and how those citations are addressed during the appeals process. It also sets forth a process whereby Cal/OSHA can establish a presumption of a serious violation and the employer has an opportunity to rebut that presumption. Finally, it establishes a process for dialogue and communication between Cal/OSHA and the employer during the investigation process before a citation is issued. Supporters say it will help strengthen the Cal/OSHA program, improve enforcement efforts, and better protect California's workers. They also say it will help accurately issue serious citations to more effectively address the most egregious violations. Cal/OSHA administrators say new factors that will be used to accurately issue serious citations include:
Critics say the showing Cal/OSHA must make to establish the presumption of a serious violation under A.B. 2774 is significantly less than the showing it previously was required to make to prove a serious violation. Employers must demonstrate that they both took all steps a reasonable and responsible employer in like circumstances should be expected to take, before the violation occurred, to anticipate and prevent the violation and took effective action to eliminate employee exposure to the hazard created by the violation as soon as the violation was discovered, according to the law firm Paul, Hastings, Janofsky & Walker. "It will be difficult in many circumstances for an employer to prove it took all reasonable steps to prevent the violation and that it eliminated employee exposure as soon as the violation was discovered." Read more at the WorkersComp Forum homepage. February 14, 2011 Copyright 2011© LRP Publications |
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