FLASH REPORTS

Flash: ETS Revisions Approved – and Soon Effective

Cal/OSHA's Standards Board, on its third try, adopts revisions to the controversial COVID emergency standard. And now the governor has weighed in on its effective date.

Flash: Governor Eyes Executive Order on COVID ETS

With Cal/OSHA expected to approve a much-anticipated revision to its COVID emergency rule, the governor says he will take action to cover any regulatory gaps not in alignment with the state's reopening.

ARTICLES

OSH Bills to Governor’s Desk

Four bills – two controversial, two not – with implications for occupational safety and health have reached the governor's desk. Here are the ones that made the cut.

Harwood Grants on Infectious Disease

Two California organizations are among 37 nationwide receiving training grants from Fed-OSHA. Here’s who they are and what they plan to do with the grants.

Supreme Court’s Retort on Safety Tort

After a contractor’s employee suffers severe injuries in an arc flash incident, he successfully sues the telecom com-pany. But California’s high court has a lot to say and overturns the case.

Here’s the Latest Version of Video Hearings Rules

The Cal/OSHA Appeals Board is working to formalize procedures for holding appeal hearings by video. Here’s the latest version of the regulation and what happens next.

Workplace Fatality Update

In the first two weeks of September, California saw two dozen workplace fatalities, the majority of them from COVID.

Heat Illness on the Farm

A new study shows that California farm employers are complying with Cal/OSHA’s heat illness prevention regula-tion. But how far does compliance go toward keeping farmworkers safe?

Standards Board to Restart In-Person Meetings

After 1-1/2 years of teleconference-only meetings, Cal/OSHA’s rulemaking body is moving back to physical loca-tions – but with teleconferencing still an option.

Fatalities: Citations and Lessons Learned

The results of a number of Cal/OSHA fatality investigations are in, and here’s what the agency alleges against a number of employers in workplace incidents.

CASES

ONTARIO REFRIGERATION SERVICE, INC.

48 COR 40-8471 [¶23,140]

SAFE PRACTICES AND PERSONAL PROTECTION – PERSONAL SAFETY DEVICES AND SAFEGUARDS, HEAT ILLNESS PREVENTION IN OUTDOOR PLACES OF EMPLOYMENT, EMPLOYEE TRAINING
Cal. Code Regs, tit. 8, § 3395(h)(1) (2021) – The Division failed to establish that Employer did not provide an employee with heat illness prevention training.

 

INJURY AND ILLNESS PREVENTION PROGRAM (IIPP) – PROCEDURES FOR IDENTIFYING AND EVALUATING WORKPLACE HAZARDS
Cal. Code Regs, tit. 8, § 3203(a)(4) (2021) – Employer failed to establish, implement and maintain an effective IIPP because it did not implement its own inspection procedures and because the IIPP lacked written provisions for training of employees and supervisors, a serious violation.

 

GENERAL PHYSICAL CONDITIONS AND STRUCTURES, STANDARD SPECIFICATIONS – FLOOR OPENINGS, FLOOR HOLES AND ROOFS, SKYLIGHTS
Cal. Code Regs, tit. 8, § 3212(e) (2021) – The Division established Employer violated the safety order by failing to ensure employees who approached within six feet of unguarded skylights were protected from falling. However, the violation was the result of an unforeseeable extreme departure from the employee’s assigned duties and, thus, the citation was dismissed.

 

DEFENSES – UNFORESEEABLE EXTREME DEPARTURE
Employer established the unforeseeable extreme departure defense, where an employee approached within six feet of an unguarded skylight without fall protection, an extreme departure from the scope of his work duties at the time of the fatal injury accident.

Summary of COSHAB-ALJ’s Decision dated August 16, 2021, Inspection No. 1327187 (Ontario, CA).

DESERT GARAGE DOOR, INC.

48 COR 40-8469 [¶23,139]

REPORTING WORK-CONNECTED INJURIES – REPORTING WORK-CONNECTED FATALITIES AND SERIOUS INJURIES
Cal. Code Regs, tit. 8, § 342(a) (2021) – Employer failed to timely report a serious injury, a regulatory violation.

 

CONSTRUCTION SAFETY ORDERS – INJURY AND ILLNESS PREVENTION PROGRAM (IIPP)
Cal. Code Regs, tit. 8, § 1509(a) (2021) – Employer failed to develop, implement, and maintain an IIPP, a general violation.

 

CONSTRUCTION SAFETY ORDERS – INJURY AND ILLNESS PREVENTION PROGRAM (IIPP), TOOLBOX OR TAILGATE SAFETY MEETINGS
Cal. Code Regs, tit. 8, § 1509(e) (2021) – The Division failed to establish that Employer did not conduct “toolbox” or “tailgate” safety meetings at least every 10 days. The safety order does not require employers to document such meetings.

 

CONSTRUCTION SAFETY ORDERS – INJURY AND ILLNESS PREVENTION PROGRAM (IIPP), EMERGENCY MEDICAL SERVICES, APPROPRIATELY TRAINED PERSON
Cal. Code Regs, tit. 8, § 1512(b) (2021) – Employer failed to ensure there was an employee available who was trained in administering first aid at the construction site, a general violation.

 

CONSTRUCTION SAFETY ORDERS – INJURY AND ILLNESS PREVENTION PROGRAM (IIPP), WRITTEN PLAN
Cal. Code Regs, tit. 8, § 1512(i) (2021) – Employer failed to have a written plan to address emergency medical services, a general violation.

 

SAFE PRACTICES AND PERSONAL PROTECTION – PERSONAL SAFETY DEVICES AND SAFEGUARDS, HEAT ILLNESS PREVENTION PLAN (HIPP)
Cal. Code Regs, tit. 8, § 3395(i) (2021) – Employer failed to establish, implement, and maintain a written HIPP containing all required elements, a general violation.

 

CONSTRUCTION SAFETY ORDERS – SAFETY INSTRUCTIONS  FOR EMPLOYEES, ONLY QUALIFIED PERSONS PERMITTED TO OPERATE EQUIPMENT AND MACHINERY
Cal. Code Regs, tit. 8, § 1510(b) (2021) – The Division failed to establish that Employer did not ensure only qualified employees operate machinery or equipment.

Summary of COSHAB-ALJ’s Decision dated August 13, 2021, Inspection No. 1471575 (Ridgecrest, CA).

HANSFORD INDUSTRIES, INC. DBA VIKING STEEL

48 COR 40-8463 [¶23,138R]

— • —

HANSFORD INDUSTRIES, INC. DBA VIKING STEEL

INJURY AND ILLNESS PREVENTION PROGRAM (IIPP) – PROCEDURES FOR IDENTIFYING AND EVALUATING WORKPLACE HAZARDS
Cal. Code Regs, tit. 8, § 3203(a)(4) (2021) – Employer did not implement procedures for identifying and evaluating workplace hazards pertaining to movement of a staircase via forklift, a general violation. Employer delegated the task of implementing its IIPP to non-supervisory employees, and its failure to implement a program of inspections by supervisors or managers, prior to assigning work to employees, constituted an ongoing, substantial deficiency that was more than an isolated, singular event.

GENERAL MOBILE EQUIPMENT AND AUXILIARIES – INDUSTRIAL TRUCKS, TRACTORS, HAULAGE VEHICLES, AND EARTHMOVING EQUIPMENT, OPERATING RULES, EXTREME CARE TAKEN WHEN TILTING LOADS
Cal. Code Regs, tit. 8, § 3650(t)(28) (2021) – Employer allowed an employee to tilt an elevated load forward when the load was not being deposited onto a storage rack or equivalent, a serious violation. The act of depositing a load is a specified exception to the rule against tilting an elevated load, not the activity being regulated. Because depositing the load is not the regulated activity, acts preparatory to it—here, removing the clamps securing the load—do not fall within the purview of the “preparatory acts” rule.

GENERAL MOBILE EQUIPMENT AND AUXILIARIES – INDUSTRIAL TRUCKS, TRACTORS, HAULAGE VEHICLES, AND EARTHMOVING EQUIPMENT, POWERED INDUSTRIAL TRUCK OPERATOR TRAINING, TRAINING PROGRAM CONTENT
Cal. Code Regs, tit. 8, § 3668(c) (2021) – Employer did not provide initial training to its forklift operators on load composition, load stability, load manipulation, and stacking and unstacking, a serious violation. Although employees completed a basic training program in safe forklift operation and took part in safety meetings on various topics, Employer’s training was not workplace-specific.

GENERAL MOBILE EQUIPMENT AND AUXILIARIES – INDUSTRIAL TRUCKS, TRACTORS, HAULAGE VEHICLES, AND EARTHMOVING EQUIPMENT, LOADS BALANCED, BRACED OR SECURED TO PREVENT TIPPING AND FALLING
Cal. Code Regs, tit. 8, § 3650(l) (2021) – Employer failed to balance, brace, or secure a load against tipping and falling during handling, a serious, accident-related violation.

GENERAL MOBILE EQUIPMENT AND AUXILIARIES, TRANSPORTATION OF EMPLOYEES AND MATERIALS – SECURING LOADS
Cal. Code Regs, tit. 8, § 3704 (2021) – Employer failed to secure a load against dangerous displacement while the clamps were being removed, a serious, accident-related violation. The Appeals Board vacated the penalty as duplicative of the penalty for violation of §3650(l).

Digest of COSHAB’s Decision After Reconsideration dated August 13, 2021, Inspection No. 1133550.

MURRAY PLUMBING AND HEATING CORPORATION DBA MURRAY COMPANY

48 COR 40-8461 [¶23,137]

CONSTRUCTION SAFETY ORDERS – HAULAGE AND EARTH MOVING, WARNING METHODS, WORKERS ON FOOT IN AREAS OF OPERATION
Cal. Code Regs, tit. 8, § 1592(e) (2021) – The Division failed to establish Employer did not control excavation operations to ensure the excavator operator knew of the presence of employees on foot in the area of excavation.

Summary of COSHAB-ALJ’s Decision dated July 20, 2021, Inspection No. 1229599 (Compton, CA).

 

WALMART, INC.

48 COR 40-8459 [¶23,136]

JURISDICTION – EMPLOYER-EMPLOYEE RELATIONSHIP
The injured employee was an employee of Employer as a result of its dual employer relationship with a staffing agency.

REPORTING WORK-CONNECTED INJURIES – REPORTING WORK-CONNECTED FATALITIES AND SERIOUS INJURIES
Cal. Code Regs, tit. 8, § 342(a) (2021) – Employer failed to report a serious injury, a repeat regulatory violation.

SAFE PRACTICES AND PERSONAL PROTECTION – PERSONAL SAFETY DEVICES AND SAFEGUARDS, FOOT PROTECTION
Cal. Code Regs, tit. 8, § 3385(a) (2021) – Employer failed to require appropriate foot protection for employees exposed to foot injuries from falling objects or crushing or penetrating actions, a serious violation.

Summary of COSHAB-ALJ’s Decision dated July 16, 2021, Inspection No. 1461476 (Bentonville, AR).

TARGET CORPORATION

48 COR 40-8457 [¶23,134R]

REPORTING WORK-CONNECTED INJURIES – REPORTING WORK-CONNECTED FATALITIES AND SERIOUS INJURIES
Cal. Code Regs, tit. 8, § 342(a) (2021) – Employer failed to report an employee’s serious injury in a timely manner. The Division established the injured employee’s inpatient hospitalization was for “other than medical observation,” and rejected Employer’s contention the time spent by the employee in the emergency room, and the care and treatment received there, should have been excluded from consideration as to whether the inpatient hospitalization was for other than medical observation.

Digest of COSHAB’s Decision After Reconsideration dated July 22, 2021, Inspection No. 1251879.

SUNVIEW VINEYARDS OF CALIFORNIA, INC.

48 COR 40-8458 [¶23,135R]

JURISDICTION – PETITION FOR RECONSIDERATION, INTERLOCUTORY
Labor Code § 6614 (2021) – The Division’s petition for reconsideration alleged potential loss of an important privilege against disclosure. Consequently, interlocutory review was appropriate.

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD – PREHEARING PROCEDURE DISCOVERY, AND MOTIONS, IDENTITY OF WITNESSES AND ACCESS TO DOCUMENTS
Board reg. §§ 372, 372.1 (2021) – The Appeals Board affirmed in part and reversed in part the ALJ’s order that the Division produce a redacted copy of the complaint to Employer. Employer was entitled to a copy of the complaint to the extent it could be redacted to protect the name of the person who submitted it, and to prevent disclosure of anything that would tend to reveal that person’s identity.

Digest of COSHAB’s Decision After Reconsideration dated July 30, 2021, Inspection No. 1153101.

P&P FRESH MEX DBA MI PANANDERIA LA MICHOCANA

48 COR 40-8455 [¶23,133R]

JURISDICTION – PETITION FOR RECONSIDERATION
Labor Code § 6614(a) (2021) – The Appeals Board lacked jurisdiction to grant reconsideration over Employer’s untimely petition.

Digest of COSHAB’s Denial of Petition for Reconsideration dated July 21, 2021, Inspection No. 1386092.