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- Posted: June 2nd, 2016Read Full Post
Earlier posts on California OSHA’s new abatement rules focused on the old wise rule and the changed dynamic and conflict brought about by the new draconian one.
In case you couldn’t tell how we really feel about the new rules, let’s look at some “real world” issues California employers have had and the quandaries they’ve faced.
What is an IIPP and should I have one?
An Injury and Illness Prevention Program (IIPP) is an employer’s written safety plan. The program, required by Cal/OSHA, is a basic outline of how an employer plans to identify and deal with worksite hazards. Every employer in California is required to have an IIPP. For more information about what's required in an IIPP, visit our Resource Center.
How detailed should my IIPP be?
This is one case where less is truly more. Think of your IIPP as a set of promises; Cal/OSHA certainly does. You should stick closely to the required elements of Title 8 California Code of Regulations section 3203, and go no further. Adding more detail to the plan itself will only set you up for failure.
Example: A client included in its IIPP both the mandated language about assessing hazards, but also added specific language about how they would handle a hazard which was considered an imminent threat to safety. When that procedure was not followed to the letter and a worker died, Cal/OSHA issued a willful serious citation to the employer for failing to follow the provisions of its IIPP. And Cal/OSHA also referred the case to the local District Attorney for prosecution.
For an example of a compliant IIPP, you need only look as far as Cal/OSHA's website. Other procedures developed in-house should be maintained in separate documents and binders. Do not include in the IIPP other mandated programs, such as HazMat, HazCom and the like. That will only serve to justify Cal/OSHA in issuing multiple citations for a single mis-step.
What is a Heat Illness Prevention Program (HIPP)?
Employers whose employees work outdoors are required to have a written Heat Illness Prevention Program (HIPP). The requirements and implementation of this plan are extensive. Additional information may be found in our Resource Center and Blog. Cal/OSHA has extensive resources on developing a plan which can be found at http://www.dir.ca.gov/DOSH/HeatIllnessInfo.html.
What injuries and illnesses have to be reported to Cal/OSHA?
When an employee suffers a “serious” injury or illness at or in connection with any employment, the employer must "immediately" report the injury to Cal/OSHA.
A serious injury is defined as:
“Any injury or illness occurring in a place of employment or in connection with any employment which requires inpatient hospitalization for a period in excess of 24 hours for other than medical observation or in which an employee suffers a loss of any member of the body or suffers any serious degree of permanent disfigurement.” The definition does not include injuries and illnesses caused by violations of the Penal Code (except PC section 385 – operating within 6 feet of a high voltage conductor) or an accident on a public street or highway.
Note: Fatalities occurring in the workplace or in connection with employment must also be reported!
When do I need to report a serious injury or illness to Cal/OSHA?
Serious injuries and illnesses must be reported "immediately." This has been interpreted to mean within eight (8) hours from when you know, or when you could have learned, that the injury is serious (see above). For further questions on when to report, please contact us.
What if I miss the 8-hour deadline?
Don't. Failing to report a serious injury or illness will result in citation with a $5,000 penalty. The defenses to these citations are very limited.
How to I report a serious injury to Cal/OSHA?
Call the nearest Cal/OSHA office. A listing of Cal/OSHA district offices may be found here: http://www.dir.ca.gov/dosh/DistrictOffices.htm
An employee had a heart attack in the office today. Do I have to report it to Cal/OSHA?
Yes. If the injury or illness occurred in the workplace and is serious (see above), it must be reported. Employers are not granted the discretion to determine if an illness or injury occurring in the workplace is related to employment.
We had a serious injury after hours today. May I wait and report it to Cal/OSHA tomorrow?
No. Reports of serious illness and injury must be made immediately but no longer than 8 hours after an employer knows or with diligent inquiry would have known of the death or serious injury or illness. This requirement is not affected by normal working hours. Calls made to Cal/OSHA after the regular business day will be recorded and time-stamped.
A Cal/OSHA inspector is on site and won’t tell me why he is here. Don’t they have to?
No. Cal/OSHA inspectors may or may not tell you why they are there. And they are forbidden by law to tell you who made a complaint that results in an inspection. If it is likely that the reason for the inspection will reveal the identity of the complainant, the inspector will withhold that information.
Do I have to consent to a Cal/OSHA inspection?
No. Without the employer’s consent, a Cal/OSHA inspector is required to obtain a warrant from the Superior Court to search a work site. However, demanding a warrant should be done with extreme caution and only after seeking an attorney’s advice. Further, a hazard that can be seen from public space (eg: the street or a nearby building) and which is considered to be an imminent threat to worker safety or health, may result in immediate action by an inspector, without consent or a warrant.
There are several Cal/OSHA inspectors on my site. One is from the Bureau of Investigations. What does that mean?
The Bureau of Investigations (BOI) is Cal/OSHA’s criminal investigations unit. BOI investigates all occupational fatalities in California and has discretion to investigate other incidents that raise issues of potential criminal liability. Contact with a BOI investigator should prompt you to seek the advice of counsel immediately before allowing the inspection to proceed. This is the only exception to our cautions about requiring a warrant for an inspection.
What is a “Notice of Intent to Issue a Citation” (1BY) form?
Cal/OSHA is required to send this form to an employer, advising that a serious citation will be issued, at least 15 days before the citation is actually issued. It is intended to give an employer the opportunity to respond to the alleged violation before the citation is issued. Please refer to our blogs on the 1BY at http://www.caloshablog.com/ before considering such a response. A response to a 1BY letter should not be provided without advice of counsel.
Do I have to respond to the 1BY?
No. There is no requirement that you respond to the 1BY form. Any response is considered “verified” or an admission by the employer, so a response should not be contemplated without advice of counsel. Further, refusal to respond cannot be used later against you if the citation is appealed.
I just received citations from Cal/OSHA. What do I do?
Take a deep breath. You have the right to appeal Cal/OSHA citations. The appeal process is managed by the California Occupational Safety and Health Appeals Board (OSHAB) in Sacramento. An appeal must be initiated with the OSHAB within 15 working - not calendar - days of receipt of the citations. This is a critical date. If you miss this deadline results you lose your right to contest the citations.
Does my phone call to the Occupational Safety and Health Appeals Board stop the clock on the appeal deadline?
Yes. However, this starts another deadline clock. Formal appeal forms must be filed with the Appeals Board within 10 calendar days of the call. Failure to file these forms properly may result in an employer losing the right to appeal or to challenge certain allegations made in the citations.
I just received citations and made an appointment with Cal/OSHA to talk about them. Do I have to do anything else?
Yes! Setting an appointment for an informal conference with a Cal/OSHA office does not protect your right to appeal the citations. You are required to initiate the appeal process with the Appeals Board in Sacramento within 15 working days, whether or not you seek an informal conference with Cal/OSHA.
Do I need an attorney to appeal citations?
No. There is no requirement that you retain a lawyer to appeal citations. Your decision should be based on your familiarity with Cal/OSHA regulations and the appeal process, your level of comfort in dealing with Cal/OSHA's managers, experts, and lawyers, the complexity of the issues raised by the citations, and the amount of time you can take from running your business to handle an appeal. When in doubt, seek legal assistance. Losing an appeal may have a greater impact on your company than merely paying a fine. If you are cited again for a similar violation, the fines can multiply. Also, citations are a matter of public record, which may affect your ability to secure new business.
How much will it cost to have an attorney handle the appeal?
The complexity of an appeal of Cal/OSHA citations may vary as much as the difference between building a single family home and a high rise building. As with building anything, plan review is required before the cost can be estimated. With an understanding of Cal/OSHA’s allegations, the relevant evidence, potential defenses and your goals, we are able to provide reasonable estimates of the time and cost involved in an appeal.
Walter & Prince, LLP is dedicated to providing excellent legal advice and representation to our clients in regards to Cal OSHA regulations, laws, investigations, appeals, and impending litigation. Our approach to representation emphasizes working in partnership with our clients. Our goals are to solve our clients’ immediate problems; to address their strategic, long-range concerns; and to be the firm that they turn to in a crisis.