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California workplace safety laws
are often confusing for businesses, and compliance seems like an overwhelming task. This article provides insight into the
organization of California workplace safety laws and the enforcement of those laws so that businesses may take steps to comply
with the laws and prepare for inspections.
CALIFORNIA OCCUPATIONAL SAFETY AND HEALTH ACT
Most people are familiar
with the term “OSHA” – an acronym for the Occupational Safety and Health Act. OSHA is a federal law that regulates safety
and health in the workplace throughout the country. Thirty years ago, the State of California enacted its own version of OSHA,
called Cal/OSHA. Because Cal/OSHA is more specific and far-reaching than the federal OSHA, the federal authorities often
defer to the California to enforce workplace safety laws. That has not always been the case; for a brief time in the late
1980's, funding was eliminated for enforcement of Cal/OSHA, and federal authorities stepped in to enforce federal OSHA laws
and regulations during that time. Now, with funding restored to the enforcement of Cal/OSHA, business need to look to state
laws and regulations to guide their planning.
Cal/OSHA is administered and enforced by the California Division of Occupational Safety and Health
. The law has an intricate web of detailed administrative regulations specific to different types of workplaces.
The standards contained in the regulations are developed by the Cal/OSHA Standards Board, a seven-member board appointed by
the Governor. The regulations cover such things as noise levels and ear protection, lighting, airborne particles, respirators,
safety procedures, blood-borne pathogens, and the like. The regulations are specific to type of industry, type of position,
and actual work performed under various circumstances, so it is difficult to generalize about the scope or applicability of
regulations.
All employers with ten or more employees, including temporary employees, must maintain a record of
work-related injuries, illnesses, and fatalities. Those logs must be kept for on the premises and preserved for at least five
years.
Employers must also report injuries or illnesses that results in death, days away from work, work restrictions
or transfer, medical treatment beyond basic first aid, loss of consciousness, needlesticks and cuts from sharp objects contaminated
with another persons’ blood or potentially infectious material, a significant illness or injury diagnosed by a physician or
other licensed health care professional. That information is recorded on Form 300. To protect employee’s privacy, may not
record employees’ names for some types of injuries. The recorded injuries and illnesses must summarized annually on Form
300A. The summary for the previous calendar year must be posted from February 1 through April 30 of the following year.
A
partial exemption from those laws applies to some establishments (public or private sector employers) in the retail, services,
finance, insurance or real estate sectors.
Effective January 30, 2003 the minimum civil penalty been increased
to $5,000.00 for failure to report a fatality or serious injury or illness to the division as required by section 342 of Title
8 of the California Code of Regulations.
Another requirement applicable to Injury and Illness Prevention Plan
(“IIPP”) and all training records kept in connection with the plan. California employers must maintain IIPP’s and periodically
train employees on safety issues.
INJURY AND ILLNESS PREVENTION PLANS
The requirement for all employers
to develop an Injury and Illness Prevention Plan was mandated in 1991 under the under the California Occupational and Safety
Act to assure the safety and health of employees while on the job. Its components include recordkeeping, hazard assessment
and abatement, safety education and worker participation. While regulatory in nature, it is a way for the employee to become
involved in primary injury prevention while at work.
Section 3203 of title 8 in the California Code of Regulations
requires EVERY California employer to have in writing an effective injury and illness prevention program that must at least
contain the following:
• Policy naming the person or persons who have authority and responsibility
for carrying out the safety and health program.
• System for ensuring that employees comply with
safe and healthful work practices, and which includes disciplinary action as well as recognition of safe work habits.
• System for communicating with employees on matters relating to occupational safety and health, and which includes provisions
for encouraging employees to inform the employer of worksite hazards without fear of reprisal.
•
Procedure for identifying and evaluating workplace hazards, and which includes scheduled periodic inspections.
• Procedure for investigating an occupational injury or illness.
• Procedure for correcting,
in a timely manner, unsafe or unhealthful conditions or work practices.
• Safety and health
training for employees and supervisors.
• System for documenting with records the scheduled, periodic
inspections and the employee safety and health training--these records must be kept for 3 years.
The requirements
of the new standard will affect thousands of establishments in California. Some industries in the retail, service, finance,
insurance and real estate sectors are potentially exempt from most recording requirements as are small businesses with ten
or fewer employees. While some employers are partially exempt from recording requirements, all employers in California are
still required to report immediately serious occupational injuries, illnesses or the death of an employee.
WORKPLACE
INSPECTIONS UNDER CAL/OSHA
The provisions of Cal/OSHA and its regulations are enforced by the Division of Occupational
Safety and Health (“DOSH”). DOSH is a state administrative agency, under the California Department of Industrial Relations,
which also has divisions regulating workers’ compensation and wages and hours of employment. DOSH includes a an Enforcement
Unit and Bureau of Investigations that inspects workplaces. Such investigations typically occur after a business has reported
a serious injury in the workplace, but sometimes investigations occur following an employee complaint, anonymous report, or
random audit.
DOSH inspections usually take place without prior notice. When an inspector arrives in the workplace,
the company should be prepared immediately to assign a high ranking safety or human resources employee to accompany the inspector.
The company representative should remain with the inspector during the entire visit, and not allow the inspector to walk through
the workplace unaccompanied. During the inspection, the company representative should keep careful notes and records of the
following types of matters:
• Make careful notes of all comments, questions, and statements by the
inspector
• Be present during, and take notes of, all conversations between the inspector and employees,
or interviews of employees by the inspector
• Observe and take notes about any machinery, safety
devices, or other items or areas of the business to which the inspector paid close attention
• If
the inspector photographs anything in the workplace, the company representative should take his or her own photographs for
the company records
Businesses must be careful to avoid creating further legal problems during a DOSH inspection.
One common mistake is for the company representative ask the DOSH inspector questions about health and safety regulations.
Although the inspector may be a source of safety information, company questions could lead the inspector to find existing
violations. Another common mistake is the company representative to offer information not specifically asked about or required
by the inspector. While the company representative should be polite and respond to the inspector’s specific requests, the
company should not volunteer information.
During an inspection, the DOSH inspector will ask to review the company’s
injury log maintained on the premises, and the employer must provide those records within four hours of the request. The
inspector will also review the company’s Injury and Illness Prevention Plan (“IIPP”) and all training records kept in connection
with the plan. California employers must maintain IIPP’s and periodically train employees on safety issues.
ADMINISTRATIVE
ENFORCEMENT OF CAL/OSHA
After the inspection, many employers receive a “Notices of Violation” and fines. The
employer should retain experienced labor counsel to respond to such a notice. The employer may contest the notice of violation
in a hearing before the administrative agency or attempt to negotiate it to a lower category of violation or a lower fine.
Following the imposition of a fine, the employer will be placed on the evaluation list to be re-inspected within
the next year. Accordingly, employers should expect continued inspections and be certain to correct safety violations. A
subsequent notice of violation for the same category of offense will result in substantially higher fines and penalties.
With
knowledge of the basic provisions of California safety and health laws, businesses may be better able to comply with the laws
and avoid violations and penalties.
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ABOUT THE AUTHOR:
Roberta
Burnette, a Business and Employment Law Attorney since 1987, is the principal attorney and founder the of BURNETTE LAW FIRM
of Westlake Village, California. She also serves as Professor of Human Resources Management and Business Law at Moorpark
College. Ms. Burnette can be reached at (805) 497-1011 or www.theburnettelawfirm.com.
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