Workplace accident rates across the nation are dropping, even after unemployment rates are factored out of the data. In plain terms, fewer workers are getting hurt on the job, which means that employers should be congratulated, right?

Not according to Fed/OSHA. Following trends in worker industries is no longer the most important statistic. The new metric is the number of citations issued to employers.

For reasons which will become clear later in this article, California employers need to become more aggressive in enforcing their safety programs.

The political wind has shifted in Washington. The federal Occupational Safety and Health Administration, a 40-year-old government agency with a half-billion dollar annual budget, has often been accused of lax enforcement of federal safety regulations, and so -- despite the data -- the pendulum is swinging dramatically to the other side

Under Fed/OSHA's new chief, Dr. David Michaels, partnering is out; enforcement and "shaming" is in. Success is measured by the number of tickets written. Consultation and industry partnering programs such as the Voluntary Protection Program (VPP) will continue, but in a much diminished role and a limited budget.

Settlement of citations is harder to achieve. In a case being handled by our office, citations which would have been settled two years ago went to a four-day trial in October 2010, resulting in a 920-page transcript. Closing briefs to the federal Occupational Safety and Health Review Commission were ordered due in the middle of February 2011 and we cannot advise the employer when a decision may be received.

This change in direction at the federal level is also changing the game at the state level. The 27 states and territories which have their own OSHA programs are allowed to operate only so long as their regulations and enforcement are, in the words of the federal Act, "as effective as" Fed/OSHA's. Following the discovery of serious flaws in Nevada's state plan, federal regulators

began holding all state-plan states to "a higher standard." The emphasis no longer is to be "as effective as" Fed/OSHA. It is to be "exactly like" Fed/OSHA.

In our state, Cal/OSHA has taken pride in being more effective than Fed/OSHA. But in the past two years Cal/OSHA has come under withering criticism for not writing enough serious citations. And our Appeals Board, which had just finished cleaning up a back-log of over 3,000 appeals, was scored for not affirming serious citations often enough.

California's reaction to this federal criticism, and veiled threats to yank federal funding for Cal/OSHA, was to enact Assembly Bill 2774. The legislative intent for the new law was clearly stated: The purpose of the law is to increase the number of serious citations issued by Cal/OSHA and upheld by the Appeals Board.

The changes to Labor Code section 6432(a), which became effective on January 1, 2011, establish a regulatory environment that front-loads the settlement negotiation process and raises the stakes for employers who decide to appeal citations.

Until now Cal/OSHA has refused to speak to employers before citations were issued, and then only within the first 10 calendar days thereafter unless an appeal is filed.

Under AB 2774, Cal/OSHA must offer the employer the opportunity to meet and informally discuss the inspector's findings and any proposed citations no later than 15 days before they are issued. At this conference the employer can present evidence and arguments why the citations should not be issued, or should be modified. Cal/OSHA has even developed a form for employers to use: Form 1BY.

Cal/OSHA will complete the front page of the 1BY with the charging allegations of the proposed citation. On the back the employer is encouraged to write all of the reasons why it believes the citation should not be issued, why the classification should be lowered, and/or why the penalty should be reduced. The form must then be signed by the employer as being true and correct.

The form does not say it, but Cal/OSHA has taken the position that the employer's statements in the 1BY constitute admissions and may be used against the employer if a citation is issued and appealed. Cal/OSHA also has taken the position that the citation is no less enforceable if it flat out ignores the arguments raised by the employer in the 1BY.

The form also does not say it, but in the event of an appeal, no negative inference can be made about the fact that the employer chose not to complete the form.

The new law also allows the employer to present evidence that it did all that a reasonable, similarly-situated employer would have done to prevent the violation. Cal/OSHA says that this is a new affirmative defense but it looks a lot like the current defense that the employer did not know of the violative condition, and could not have discovered it with the exercise of reasonable diligence.

Why, then, should an employer even consider completing the 1BY? Because the alternative may be riskier.

Perhaps the most significant change made by AB 2774 is to the standard of proof for serious citations. Instead of having to prove that a violation created a "substantial probability" of serious injury, which our Appeals Board has defined as "more likely than not" – the standard used in civil court to prove personal injury negligence -- Cal/OSHA now only needs to show that the violation created a "realistic possibility" of serious injury.

Cal/OSHA's chief counsel Amy Martin freely admits that she has no idea what "realistic possibility" means, but she intends to use this language to make it as easy as possible to prove a serious citation.

The bill also requires Cal/OSHA's inspectors to state the "actual" hazard posed by the alleged violative condition. We have asked contacts within Cal/OSHA what this means. They interpret it to mean that the inspector will have to state a specific injury or illness which can result from the violation, as opposed to "throwing something against the wall to see if it sticks." For many of Cal/OSHA's inspectors this may be a new challenge, but this is what good inspectors have been doing all along.

The bill also broadens the definition of "Serious Physical Harm" for serious citations in two ways. First, it removes the requirement of 24 hours in-patient hospitalization so that any in-patient care is considered serious. Second, it adds such injuries as second degree burns and broken bones, neither of which are insignificant, but which typically do not result in permanent impairments.

Employers should note that this is separate from the definition of a "serious injury" for reporting purposes under Title 8 California Code of Regulations section 342(a); that definition remains the same.

Last but not least, the law now also provides that every Cal/OSHA safety inspector whose training is up-to-date, shall be "...deemed competent to offer testimony to establish each element of a serious violation...," as well as "custom and practice" in the workplace. The legislation does not require that the inspector's training must bear some – or any – relation to the subject of the cited regulation, nor does it state whether this new status creates a rebuttable or conclusive presumption. If rebuttable, employers will need to hire their own experts. The result will be longer appeal hearings, which in turn will raise the costs of the appellate process not just for employers, but for Cal/OSHA as well. If conclusive, employers will have few options but to accept their citations as written.

Either way the deck is stacked in favor of Cal/OSHA.

The new law creates several issues which will probably not be resolved soon. California employers may recall that AB 1127 was a game-changer which became effective in 2000. Among other things, AB 1127 established multi-employer workplace liability for "controlling employers," an issue which is still being litigated. We can expect no less from AB 2774.

Among the issues to be resolved:

1. How does an employer resolve the dilemma between cooperating with Cal/OSHA by completing the 1BY, or going to hearing facing the reduced "realistic possibility" standard of proof?
2. How can employers easily keep in mind the distinctions between "serious injury" for reporting purposes and for citation classifications?
3. Is the presumption of expertise for Cal/OSHA's inspectors conclusive or rebuttable?
4. AB 2774 only changes the standard of proof for serious citations. Does that mean that the standard of proof for general citations remains "substantial probability?"
5. In ten years will there be so many "serious" citations on the books that the classification will no longer be a valuable measure of an employer's commitment to safety?

The effects of the new law will be most sharply felt, however, by construction contractors, both general and specialty, as they live and die by their OSHA citation histories.

How should employers react to these changes? Aggressive enforcement policies and a front-loaded citation system demand aggressive preparations. Here are a few suggestions:

1. Don't just say you will periodically review your written programs. Do not just add it to your To Do list. Instead, put a schedule of review dates on your calendar as a real event. Periodic reviews are as important as any other business meeting.
2. Emphasize that every employee is responsible for safety. Empower them to question equipment, practices and directions which they feel are unsafe.
3. Increase your training schedules. Spread the responsibility for training around. One effective tool is to have someone involved in a "near miss" do the next presentation.
4. Conduct spot safety quizzes of all workers. After all, OSHA will.
5. Discipline employees who are found working unsafely, regardless their status or good history. AND
6. Document, Document, Document all that you do.

Finally, follow Davey Crockett's advice: "Be sure you're right and then go ahead." Keeping your eye on compliance is key, but safety compliance is not safety. Don't lose sight of the true goal – worker safety. Do the right thing, keep your paperwork current and hope for the best. You'll sleep better if you do.