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Serious Workplace Safety Violations More Likely to Stick Under New Law
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As a full-service commercial brokerage, it is important that you keep your clients up to date on the latest in workplace safety regulations and guide them through the process if they are ever visited by Cal/OSHA investigators.
This year marked a considerable change to the way Cal/OSHA conducts its inspections thanks to a law that took effect in January. The law, the result of last year’s AB2774, is designed to make it easier for citations for serious safety violations to stick and to give employers a chance to discuss any findings with the inspector and defend themselves.
Employers whose workplaces are being inspected by Cal/OSHA need to remember one thing: don’t hesitate to have an open dialogue with Cal/OSHA inspectors. They should make their case that they have a safe workplace, especially if they don’t agree with any conclusions made by the inspector.
Those taking that strategy well have a much better chance of saving time and money, say lawyers. Employers may manage to convince inspectors not to file a violation by demonstrating safety diligence. They may argue, for instance, that an investigation came as a result of an isolated, uncontrollable incident and doesn’t warrant a citation.
Enacted Jan. 1, AB2774 is aimed at beefing up the ability of Cal/OSHA to get more serious workplace safety violations against employers – without fine reductions – past the Appeals Board. The result will likely be an increase in citations for serious violations from Cal/OSHA, particularly for injuries requiring stays of one day or more in the hospital.
Still, despite allowance for more dialogue with inspectors, an employer’s best defense against safety violation citations remains awareness of the rules and making any needed changes in worker safety and health programs.
The new law was written in the wake of criticism from a study by Fed-OSHA that Cal/OSHA’s workplace safety inspection processes didn’t have sufficient legal teeth to produce enough serious safety violations and handed out too many fine reductions.
The feds’ conclusions came after a June 2009 open letter from Cal/OSHA staffers to the Appeals Board, claiming the board’s actions limited its ability to hold employers accountable for serious workplace injuries in their work sites.
As a remedy, the new law eases the former definition of “substantial probability,” which the Appeals Board has historically interpreted to be an alleged safety violation that “more likely than not” would cause death or serious injury. The new interpretation is a more legally vague “realistic possibility that death or serious physical harm could result” from a cited workplace hazard.
But the new law also broadens the legal definition of “serious physical harm,” to mean any job-related incident that requires a worker to be hospitalized for anything more than observation, causes dismemberment, disfigurement or a physical disability. This includes things like serious burns, crushed body parts, respiratory illnesses, broken bones and repetitive-motion injuries. This is much more specific than the generic definition of “serious physical harm” that had been used by the Appeals Board. Before, it was only defined as a serious injury or illness.
Another provision of the new law requires state safety inspectors for the first time to make their own findings as part of filing a violation. That enables Cal/OSHA to use the testimony of its inspectors to make cases alleging serious violations.
Those findings include how well employer training keeps employees away from workplace hazards, how well the employer discovers and corrects a hazard, and the key here for employers, any information an employer wants to provide on the matter, including assertions as to why a violation has not taken place.
New option for employers
The new law encourages Cal/OSHA to submit to the employer a form that lists the alleged violations at least 15 days before issuing a serious violation. Administrative law judges on these cases will now be expecting forms that include employers’ written defense against alleged violations.
The form is one page, with the front page filled out by the state inspector, with a report on alleged safety violations. The employer can then use the form’s flipside to defend its actions in refuting any alleged violations. Employers can add as many written pages they want to the back of the form to defend themselves.
Employers can claim in their defense that there was no way for them to know the existence of an alleged violation and that they took the reasonable steps needed to prevent one from happening. And they can claim they did all they could to keep employees away from a hazard cited in an alleged violation.
Attorneys say, however, it will be difficult for an employer to prove it took all reasonable preventative steps and eliminated employee exposure as soon as the violation was discovered.
More citations for serious violations are expected from Cal/OSHA in the wake of this new law’s expanded definition of “serious physical harm.” The biggest up-tick is expected in cases involving employee hospitalization for less than a day.
To help win their cases, legal analysts say employers may need expert witness testimony to argue against testimony of Cal/OSHA inspectors.