Will Repeats Become The New Normal

by walterlaw Cal/OSHA Issues OSHA Enforcement Policies OSHA News Abatement

Starting New Year’s Day, changes to the definition and scope of Cal/OSHA’s Repeat classification will change dramatically. But there will be some lag time between adoption and implementation. Time which should be spent bullet-proofing your safety program.

Effective January 1, 2017 a citation can be classified as “Repeat” when the employer has “abated or indicated abatement of” an earlier violation for which a citation was issued, but the Division finds during a later inspection occurring within five years following the date that the earlier violation became final that the employer has committed a violation of ”a substantially similar” regulation anywhere in the state. The subsequent violation must be found to involve “essentially similar conditions or hazards.”

There is much to talk about here as we unpack the new rule and mull over its ramifications. As I write this (in mid-December 2016) I’m hearing the second and third sections of Mussorgsky’s “Night on Bald Mountain” running through my head. (Those who have seen Disney’s “Fantasia” will get it. If you haven’t, do so with a young child.) Follow this link to the sheet music for our mental sound track: 8 Cal Code Regs §334(d).

1. The Trigger

The current rule provides that the clock begins to run for citing a later violation as repeat on the date of the violation and extends three years from then, regardless when any appeal from a citation becomes final.

The new rule is that a five year clock starts to run when the violation becomes final, either by the employer not filing an appeal to the resulting citation or at the end of the appeal process, however long that may take.

2. The Reach

The current rule is that the geographic limit for a repeat is the boundary of the Cal/OSHA region in which the first violation occurred. So, a violation occurring in Los Angeles is only fodder for a repeat there, and not elsewhere. The new rule extends to the entire state, from Modoc to Imperial, Alpine to Marin.

3. The Limitation

Cal/OSHA has told us that the new rule will apply only to violations occurring – not citations issued – on or after January 1, 2017. For violations occurring on December 31, 2016 or before, the “look back” period will still be three years and the geographic scope will still be limited to the region in which that violation occurred, regardless when the citation is issued. It appears then that there can be a substantial lag period between the effective date of the new rule and its application in a particular case.

Two examples: An accident occurs on December 1, 2016 in Region One and the citation is issued on March 1, 2017. If a same or similar violation occurred for this employer in Region One on or after December 1, 2013 the old rule tracks the violation date and the new citation may be classified as Repeat.

Second example: If an accident leading to a citation occurs on January 1, 2017, and the citation becomes final on March 2, 2017, the finality date for the first citation will be tracked and any “substantially similar” violation which occurs anywhere in the state before March 2, 2022 can be classified as Repeat.  Note: the new rule does not require that the citation for the second violation be within the five year period, just the violation.

4. “Substantially Similar” and “Essentially Similar Conditions or Hazards”

What does this language mean? Your guess is as good as ours. The Division can be expected to take a very broad stance. We will be looking to limit the breadth of these phrases as much as possible.

5. Penalty Calculations

What can we expect the penalty for a repeat to be under the new rule? The current rule is that for a first instance of a repeat, the amount Cal/OSHA determines would be the normal penalty is doubled. For the second it is tripled.

The Division has made no changes to this formula, so let’s assume a serious accident-related violation is assessed a proposed penalty of $18,,000.00. If the violation is classified as a first repeat, the penalty jumps to $36,000.00. If a second, it triples to $54,000.00 (but we would not be surprised to see a second instance classified as Willful with a $70,000.00 penalty).

6. New Years Resolutions

So, who is most at risk with the new rule? The most obvious targets with heightened risk are construction companies, chain stores and restaurants, delivery services - any company with more than one work site in more than one Cal/OSHA region.

And what is the most likely regulation to be cited? Why, the IIPP standard of course. Following an accident it is the lowest of low hanging fruit for an inspector looking to increase his or her citation count, and it is our experience that inspectors take full advantage of hindsight here. As one inspector explained with a straight face, “Accidents happen because the employer either failed to identify and correct a hazard, or failed to adequately train its employees,” both of which are citable under 8 CCR section 3203.

After that, it depends on your industry. Construction? Fall protection. Manufacturing? Guarding and Lock Out/Tag Out. Hospitals? Blood-borne pathogens and the new workplace violence regulation.

So, make a few resolutions for the new year: Revisit and update your IIPP and other written programs. Assess your vulnerabilities and focus your training program on them. Continue or increase your safety walk-arounds. Last, but not least, enforce your safety rules, including terminations if warranted. If you want our worksheet on how to prove the Independent Employee Act defense, let us know.

Happy New Year!