FLASH REPORTS

Flash: Dramatic Increases in Fed, Cal/OSHA Penalties?

Language in a congressional budget bill would increase Fed-OSHA penalties tenfold for certain violations. Would Cal/OSHA be forced to follow suit?

Flash: Cal/OSHA Proposes ‘Permanent’ COVID Regulation

With its emergency regulation set to expire, Cal/OSHA decides to make permanent changes to its controversial standard – sort of. Here’s what’s going on.

ARTICLES

Preparing for New Broader Enforcement

A new law hits California employers hard and gives Cal/OSHA substantially increased enforcement and penalty powers. It’s not too early to prepare. Premium subscribers can find out exactly what they’re doing and what experts think. Click here.
Standards Board’s Manieri Retires

Real-World Experience to Rulemaking

Cal/OSHA’s Mike Manieri is saying goodbye to the Standards Board after nearly 40 years. He says it was his private-industry experience that has informed his public service. His history is intertwined with that of Cal/OSHA. This is an interesting look back at Cal/OSHA and Mike’s career.

Settlements in Safety & Health Cases

It’s not just fatalities that trigger sizable Cal/OSHA citations and proposed penalties. Here are more cases that re-cently settled.

Workplace Fatality Update

Here are the latest workplace fatalities under Cal/OSHA investigation, including COVID deaths.

COVID – IIPP Cases Coming to Fore

Many stakeholders see Cal/OSHA’s IIPP standard as preferrable for regulating COVID hazards, instead of the controversial emergency temporary standard. Now, COVID related cases filed under the IIPP standard before the ETS are starting to get adjudicated, and the applicability of the 30-year-old regulation will be determined. Here’s how it’s fared so far.

Standards Board Cancels In-Person Meeting –– Teleconference Only

It was going to be the first in-person meeting of Cal/OSHA’s rulemaking body in more than a year and a half. But that changed. Here’s why and what happens instead.

Fatality Settlements

Here’s how five recent fatality cases turned out after Cal/OSHA and the employers sat down in settlement talks.

Workplace Fatality Update

Investigations are underway into new California workplace incidents. The good news? COVID-related fatalities are sharply down.

CASES

HILL CRANE SERVICE, INC.

48 COR 40-8483 [¶23,147R]

SAFE PRACTICES AND PERSONAL PROTECTION, PERSONAL SAFETY DEVICES AND SAFEGUARDS – HEAT ILLNESS PREVENTION IN OUTDOOR PLACES OF EMPLOYMENT, HEAT ILLNESS PREVENTION PLAN (HIPP)
Cal. Code Regs, tit. 8, § 3395(i) (2021) – The Appeals Board reversed the ALJ’s decision that Employer’s HIPP contained all elements required by the safety order. The Board concluded that, although the HIPP satisfied most of the minimum requirements of §3395(e)(5), it did not specifically provide for daily pre-shift meetings to discuss high heat procedures on all high-heat days, other than under heat wave conditions, nor did it require supervisors to remind employees of their right to take cool-down rests as needed. The Appeals Board affirmed the citation.

INJURY AND ILLNESS PROTECTION PROGRAM (IIPP) – TRAINING AND INSTRUCTION
Cal. Code Regs, tit. 8, § 3203(a)(7) (2021) – The Appeals Board reversed the ALJ’s decision that Employer’s IIPP contained all elements required by the safety order and was implemented in accordance with the boom dolly crane operating instructions in effect at the time of the fatal injury accident. Employer failed to train all employees to use two or more wheel chocks pursuant to its boom dolly operating instructions. The Appeals Board affirmed the citation.

SAFE PRACTICES AND PERSONAL PROTECTION, MISCELLANEOUS SAFE PRACTICES – MACHINERY AND EQUIPMENT NOT USED OR OPERATED UNDER CONDITIONS OF SPEED, STRESSES, LOADS, OR ENVIRONMENTAL CONDITIONS CONTRARY TO MANUFACTURER’S RECOMMENDATIONS
Cal. Code Regs, tit. 8, § 3328(a)(2) (2021) – The Appeals Board affirmed the ALJ’s decision that the Division failed to establish a violation of the cited safety order. The fatal injury incident took place before the subsection that formed the basis for the alleged violation took effect.

Digest of COSHAB’s Decision After Reconsideration dated September 24, 2021, Inspection No. 1135350.

SA RECYCLING

48 COR 40-8481 [¶23,146R]

REGULATIONS OF THE DIRECTOR OF INDUSTRIAL RELATIONS – PROPOSED PENALTY PROCEDURE, ASSESSMENT OF CIVIL PENALTIES, ABATEMENT CREDIT FOR GENERAL AND SERIOUS VIOLATIONS
Cal. Code Regs, tit. 8, § 336(e)(2) (2021) – The administrative law judge determined Employer violated the safety order by failing to install an adequate guard on a shear, but that the Division did not establish the accident-related character of the serious violation. On reconsideration, the Appeals Board vacated the portion of the ALJ decision denying Employer an abatement credit.

Digest of COSHAB’s Decision After Reconsideration dated September 27, 2021, Inspection No. 1199064.

ACME ANYTHING

48 COR 40-8481 [¶23,145R]

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

JURISDICTION – PETITION FOR RECONSIDERATION, VERIFICATION AND SERVICE
Labor Code §§ 6616, 6619 (2021) – Employer did not verify its petition for reconsideration or provide proof it served the petition on the Division.

Digest of COSHAB’s Denial of Petition for Reconsideration dated September 23, 2021, Inspection No. 1341947.

 

ADJ GROUP LLC DBA GLOBAL TRUSS AMERICA LLC

48 COR 40-8479 [¶23,143R]

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 September 16, 2021, Inspection No. 1262198.

VICTOR C. GARCIA, AN INDIVIDUAL DBA FLORES AUTO SERVICE

48 COR 40-8479 [¶23,144R]

JURISDICTION – PETITION FOR RECONSIDERATION
Labor Code § 6614(a) (2021) – The Appeals Board lacked jurisdiction to grant reconsideration over the untimely petition filed by Employer, which failed to act with reasonable diligence in pursuing its reinstated appeal.

Digest of COSHAB’s Denial of Petition for Reconsideration dated September 16, 2021, Inspection No. 1359495.

WEST COAST ARBORISTS, INC.

48 COR 40-8476 [¶23,142]

GENERAL PLANT EQUIPMENT AND SPECIAL OPERATIONS – TREE WORK, MAINTENANCE OR REMOVAL, SAFE WORK PROCEDURES, FELLING
Cal. Code Regs, tit. 8, § 3427(c)(5) (2021) – The Division did not establish Employer failed to identify potential hazards in the area surrounding the tree to be removed, including nearby trees.

Summary of COSHAB-ALJ’s Decision dated August 23, 2021, Inspection No. 1330292 (Anaheim, CA).

PANDA RESTAURANT GROUP, INC. DBA PANDA EXPRESS

48 COR 40-8475 [¶23,141]

GENERAL PHYSICAL CONDITIONS AND STRUCTURES – ACCESS, WORK SPACE, AND WORK AREAS, PORTABLE LADDERS, CARE, USE INSPECTION AND MAINTENANCE OF LADDERS, ACCESS TO LANDINGS
Cal. Code Regs, tit. 8, § 3276(e)(11) (2021) – The Division established a portable ladder was used for access to an upper landing surface and Employer failed to ensure it extended at least 36 inches above a landing surface, a serious violation. However, the ALJ reduced the proposed penalty.

 

GENERAL PHYSICAL CONDITIONS AND STRUCTURES – STANDARD SPECIFICATIONS, ELEVATED LOCATIONS
Cal. Code Regs, tit. 8, § 3210(b) (2021) – The Division established the top of a cooler at Employer’s restaurant was an elevated work location that lacked required guardrails or some other fall protection system.

Summary of COSHAB-ALJ’s Decision dated August 23, 2021, Inspection No. 1183524 (Rosemead, CA).

 

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).