Cal/OSHA has published revisions to its controversial residential fall protection proposal. And there is a notice out for comments. Will they be able to address construction’s concerns and keep the Feds happy?

After a controversial and failed vote in March, Cal/OSHA’s Standards Board adopts a revised indoor heat illness rule. Will this one pass muster with OAL?

Fed-OSHA responds to the recent revisions to Cal/OSHA’s residential fall protection standard. Is it yea or nea on a compromise between the Feds’ stance and industry’s pushback?

Why did the Cal/OSHA Standards Board deny a variance to a construction contractor working on the Los Angeles subway system for automated personnel hoists? The answer is a gas.

Here is the status of OSH bills in the state legislature.

Here are the latest fatal workplace incidents from around California.

New rules proposed by the Department of Industrial Relations could significantly ratchet up penalties for employers with multiple locations. Here are the proposed new regulations and how you can weigh in on them.

More employers have qualified under Cal/OSHA’s safety recognition programs. Here are the latest to be feted for safety in the workplace.

A beekeeper is killed in a machine encounter, and his employers are charged with felonies in a case involving willful violations. Here is how the case concluded in Marin County Superior Court.

Fed-OSHA is making available almost $13 million in safety and health training grants. Here’s how California em-ployers and other organizations can apply.

49 COR 40-8835 [¶23,290]

SAFETY DEVICES MAINTAINED IN SAFE SANITARY CONDITION –
Title 8, California Code of Regulations, §1514(d) –
The evidence proffered showed that the Employer failed to ensure that personal protective equipment (hard hat) was maintained safely, sanitary.

 LABELING OF PERSONAL FALL RESTRAINT –
Title 8, California Code of Regulations, §1670(l) –
The evidence proved that Employer placed an SRL into service that was missing the required label, attesting that it met applicable ANSI requirements.

 MANUFACTURER’S RECOMMENDATIONS –
Title 8, California Code of Regulations, §1670(f) –
The evidence proffered showed Employer did not inspect fall protection equipment and fall arrest systems prior to each use as required by the manufacturer.  Employer did not remove unsafe or defective fall protective equipment from service.

 INSPECTION AND DOCUMENTATION OF FALL ARREST SYSTEMS –
Title 8, California Code of Regulations, §1670(b) –
The evidence proffered showed Employer did not inspect fall arrest systems at least twice annually.  The evidence, therefore supported an inference that Employer did not document inspections of fall arrest systems.

 FALL HAZARD TRAINING –
Title 8, California Code of Regulations, §1710(q) –
The evidence proffered showed nothing in the record indicated that Employer trained its employees to inspect the labels of their issued equipment.

 AFFIRMATIVE DEFENSE – INDEPENDENT EMPLOYEE ACT (IEAD) –
The IEAD was inapplicable here where a supervisor or foreperson committed the violation.

VIOLATIONS – SERIOUS CLASSIFICATION
Labor Code §6432(a) – the Division established a rebuttable presumption that Citations 2, 3, and 4 were properly classified as Serious.

SERIOUS VIOLATION – REBUTTAL PRESUMPTION OF CLASSIFICATION –
Labor Code §6432(c) – Employer failed to rebut the presumption that Citations 2, 3 and 4 were properly classified as Serious by demonstrating that it took all the steps a reasonable and responsible employer should be expected to take, before the violation occurred.

 ACCIDENT-RELATED CHARACTERIZATION –
The evidence proffered by the Division for Citation 2 established a showing of a “causal nexus between the violation and the serious injury”.

 ASSESSMENT OF CIVIL PENALTIES
Citations 1, 2, 3 and 4 were affirmed, and the proposed penalties were assessed, except the stipulated for Citation 4 was assessed.

Digest of COSHAB ALJ’s Decision dated June  3, 2024,  Inspection No. 1372705 (Bakersfield)

49 COR 40-8829 [¶23,289R]

SERIOUS INJURY REPORTING –
Title 8, California Code of Regulations, §342(a)(1) – The evidence presented showed the Employer failed to report a serious injury to the Division immediately.

CITATION – PARTICULARITY/NOTICE REQUIREMENT –
Labor Code §6317 – The Appeals Board determined that a citation for a general violation was written with sufficient particularity in describing the nature of the violation to provide fair notice and allow Employer to prepare a defense.

INJURY AND ILLNESS PREVENTION PROGRAM (IIPP) –
Title 8, California Code of Regulations, §§3203(a)(2), (a)(4) and (a)(6)  –  The evidence presented demonstrated Employer’s IIPP did not have all required written procedures, Employer failed to implement effective procedures for conducting inspections and identifying and evaluating workplace hazards.   A “new or previously unrecognized hazard” was demonstrated.

HEAD PROTECTION –
Title 8, California Code of Regulations, §3381(a)  – The evidence presented demonstrated that Employer failed to ensure an employee exposed to the risk of head injury was wearing approved head protection.

HOISTING EQUIPMENT – MOVING THE LOAD –
Title 8, California Code of Regs, §4999(d)(2) – The evidence demonstrated Employer failed to ensure that a load was well secured and properly balanced in a lifting device before it was lifted more than a few inches, a serious, accident-related violation.

VIOLATIONS – SERIOUS CLASSIFICATION
Labor Code §6432(a) – the Division established a rebuttable presumption that the citation was properly classified as Serious.

SERIOUS VIOLATION – REBUTTAL PRESUMPTION OF CLASSIFICATION
Labor Code §6432(c) – Employer failed to rebut the presumption that Citation 2 was properly classified as Serious by demonstrating that it took all the steps a reasonable and responsible employer should be expected to take, before the violation occurred.

SERIOUS ACCIDENT-RELATED CHARACTERIZATION
The Appeals Board affirmed the characterization of Citation 2.  A causal nexus existed between the violation and the employee’s  serious injury.

PENALTY CALCULATION
All citations were affirmed.  The proposed penalties for Citation 1, Item 1, and Citation 2 were properly calculated and assessed.

CITATION ISSUED TIMELY/STATUTE OF LIMITATIONS
Labor Code §6317 – The evidence presented demonstrated the Division failed to issue the citations within the statute of limitations.  The statutory deadline for issuing citations was suspended by executive order.  The Appeals Board determined the Governor acted within his authority under the Emergency Services Act. (Gov. Code, §§8550-8669.7.)

Digest of COSHAB’s Decision After Reconsideration dated June 12, 2024, Inspection No. 1497263.

 

49 COR 40-8828 [¶23,288R]

JURISDICTION – PETITION FOR RECONSIDERATION
Labor Code § 6614(a) – The Appeals Board lacked jurisdiction to grant reconsideration over Employer’s untimely petition for reconsideration.

Digest of COSHAB’s Denial of Petition for Reconsideration dated May 23, 2024, Inspection No. 1666704.

 

49 COR 40-8825 [¶23,286]

INJURY AND ILLNESS PREVENTION PLAN
Title 8, California Code of Regulations, §§3203(a)(4) and (a)(6) –
The evidence proffered showed that the Employer failed to investigate new hazards effectively and failed to implement procedures to correct workplace hazards relating to COVID-19.

 CONTROL OF HARMFUL EXPOSURE TO EMPLOYEES
Title 8, California Code of Regulations, §5141(a) –
The evidence proved that the Division did not meet its burden to show that Employer failed to establish feasible engineering controls to prevent the hazard.

 VIOLATIONS – SERIOUS CLASSIFICATION
Labor Code §6432(a) –
The Division established a rebuttable presumption that the citation was properly classified as Serious.

 SERIOUS VIOLATION – REBUTTAL PRESUMPTION OF CLASSIFICATION
Labor Code §6432(c) –
Employer failed to rebut the presumption that Citation 2 was properly classified as Serious by demonstrating that it took all the steps a reasonable and responsible employer should be expected to take, before the violation occurred.

ASSESSMENT OF CIVIL PENALTIES
Citations 1 and 2 were affirmed, and the proposed penalties were assessed.

Digest of COSHAB ALJ’s Decision dated May 24, 2024, Inspection No. 1499137 (Lancaster)

 

49 COR 40-8821 [¶23,286]

INJURY AND ILLNESS PREVENTION PLAN
Title 8, California Code of Regulations, §3203(a)(4) –
The evidence proffered showed that the Employer effectively had procedures in place identifying and evaluating workplace hazards, including “scheduled periodic inspections

 MACHINERY AND EQUIPMENT – POINT OF OPERATION
Title 8, California Code of Regulations, §4207(a) –
The evidence proffered showed that the point of operation on the hydraulic press was not adequately guarded to prevent entry of hands or fingers into the point of operation by reaching through, over, under or around the guard.

 SERIOUS VIOLATION – REBUTTAL PRESUMPTION OF CLASSIFICATION
Labor Code §6432(c) –
Employer failed to rebut the presumption that Citation 2 was properly classified as Serious by demonstrating that it took all the steps a reasonable and responsible employer should be expected to take, before the violation occurred.

ASSESSMENT OF CIVIL PENALTIES
Citation 2 was affirmed, and the proposed penalty was assessed.

Digest of COSHAB ALJ’s Decision dated May 20, 2024, Inspection No 1498595 (Visalia)

 

 

49 COR 40-8815 [¶23,285R]

INJURY AND ILLNESS PREVENTION PROGRAM (IIPP)
Title 8, California Code of Regulations, §3203(a)(4) –  The Division did not meet its burden in proving that Employer failed to effectively implement its IIPP.

HAZARDOUS ENERGY CONTROL – TRAINING ON WRITTEN LOCKOUT/TAGOUT PROCEDURES
Title 8, California Code of Regulations, §3314(l)(1) – The evidence presented showed the Division failed to meet its burden to establish that Employer’s training was insufficient.

INDEPENDENT EMPLOYEE ACTION DEFENSE (IEAD) –
Employer failed to establish the second element of the IEAD with respect to having a well-devised safety program.

MACHINERY AND EQUIPMENT AS RECOMMENDED BY THE MANUFACTURER
Title 8, California Code of Regulations, §3328(b)  – The Division did not meet its burden of proof to establish that Employer failed to maintain

MACHINERY AND EQUIPMENT – GUARDING HAZARDOUS PARTS
Title 8, California Code of Regulations, §4002(a) – The evidence at hearing established the safety order applies specifically to accidental contact with moving machine parts. The Division’s evidence did not establish that an employee could access the zone of danger through any accidental or inadvertent means.

Digest of COSHAB’s Decision After Reconsideration dated April 25, 2024, Inspection No. 1113026.

 

49 COR 40-8813 [¶23,284R]

JURISDICTION – PETITION FOR RECONSIDERATION
Labor Code § 6614(a) – The Appeals Board lacked jurisdiction to grant reconsideration over Employer’s untimely petition for reconsideration.

Digest of COSHAB’s Denial of Petition for Reconsideration dated April 19, 2024, Inspection No. 1625466.

 

49 COR 40-8807 [¶23,283]

HEAT ILLNESS PREVENTION PROGRAM
Title 8, California Code of Regulations, §3395(f)(1) -The evidence proffered showed that the Division failed to prove that Employer did not provide the required training on heat illness prevention.

INJURY AND ILLNESS PREVENTION PLAN
Title 8, California Code of Regulations, §§3203(a)(6) and (a)(7) – The evidence proffered showed that the Employer did not effectively implement an essential IIPP procedure.

EXCAVATION INSPECTIONS
Title 8, California Code of Regulations, §1541(k)(1) – The evidence proffered showed that the Division proved that Employer did not perform a needed excavation inspection. 

EXCAVATION PROTECTION
Title 8, California Code of Regulations, §1541.1(a) – The evidence proffered showed that Employer failed to protect employees in an excavation from cave-ins by an adequate protective system designed in accordance with §1541.1(b) or (c). The ALJ sustained the serious, accident-related and willful characterizations of the violations at issue. 

AFFIRMATIVE DEFENSES 

LOGICAL TIME DEFENSE:
The evidence proffered showed that Employer was aware that the logical time with respect to Citation 4 had arrived for protecting the employees.

INDEPENDENT EMPLOYEE ACTION DEFENSE (IEAD):
Employer failed to prove all five elements of the IEAD, the defense failed with respect to Citation 4.

SERIOUS VIOLATION – REBUTTAL PRESUMPTION OF CLASSIFICATION Labor Code §6432(c) –
Employer failed to rebutt the presumption that Citations 2, 3 and 4 were properly classified as Serious by demonstrating that it took all the steps a reasonable and responsible employer should be expected to take, before the violation occurred.

ASSESSMENT OF CIVIL PENALTIES
Citations 2, 3 and 4 were affirmed, and the proposed penalties were assessed.

Digest of COSHAB ALJ’s Decision dated April 25, 2024, Inspection No 314864661 (Los Angeles)