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48 COR 40-8402 [¶23,103R]

CONTROL OF HAZARDOUS SUBSTANCES – DUSTS, FUMES, MISTS, VAPORS AND GASES, RESPIRATORY PROTECTION, PERMISSIBLE PRACTICE
Cal. Code Regs, tit. 8, § 5144(a)(1) (2021) – The Division established a serious violation of §5144(a)(1) because the breathing air was contaminated with harmful dusts; employees were exposed to harmful dusts; Employer’s engineering control measures did not control employee exposure to Valley Fever as far as feasible; and appropriate respirators were not used when effective engineering controls were not feasible to prevent atmospheric contamination. 

CONTROL OF HAZARDOUS SUBSTANCES – DUSTS, FUMES, MISTS, VAPORS AND GASES, RESPIRATORY PROTECTION, MEDICAL EVALUATION
Cal. Code Regs, tit. 8, § 5144(e)(1) (2021) – The Division established Employer did not provide medical evaluations before employees were fit tested or required to use respirators in the workplace. Because Employer required employees to use respirators in certain circumstances, the Appeals Board reversed the ALJ’s application of an exception to the safety order found in §5144(c) that provides employers are not required to include in a written respiratory protection program those employees whose only use of respirators involves the voluntary use of dust masks. 

CONTROL OF HAZARDOUS SUBSTANCES – DUSTS, FUMES, MISTS, VAPORS AND GASES, RESPIRATORY PROTECTION, TRAINING AND INFORMATION
Cal. Code Regs, tit. 8, § 5144(k)(5) (2021) – The Division failed to establish Employer did not provide training or retraining to employees who were required to use respirators. The Division inspector’s testimony that some employees were using bandanas in lieu of face masks was based on interviews other Division inspectors conducted with employees, not personal observation. 

CONSTRUCTION SAFETY ORDERS – GENERAL, INJURY AND ILLNESS PROTECTION PROGRAM (IIPP)
Cal. Code Regs, tit. 8, §§ 1509(a), 3202(a)(6) (2021) – The Division established Employer did not effectively implement its IIPP, due to its failure to effectively identify, evaluate, and correct workplace hazards relating to cocci spores, a serious violation. Employer had procedures in its IIPP and implemented some of them, but overall failed to correct unsafe or unhealthy working practices, procedures or conditions, such as by requiring employee use of respirators when effective engineering controls were not feasible to prevent atmospheric contamination.

Digest of COSHAB’s Decision After Reconsideration dated March 30, 2021, Inspection No. 1235643.

48 COR 40-8399 [¶23,102R]

CONTROL OF HAZARDOUS SUBSTANCES – DUSTS, FUMES, MISTS, VAPORS AND GASES, RESPIRATORY PROTECTION, PERMISSIBLE PRACTICE
Cal. Code Regs, tit. 8, § 5144(a)(1) (2021) – The Division established Employer did not require use of appropriate respirators to prevent exposure to cocci spores when engineering controls were not feasible to prevent disease, a serious violation.

CONSTRUCTION SAFETY ORDERS – GENERAL, INJURY AND ILLNESS PROTECTION PROGRAM (IIPP)
Cal. Code Regs, tit. 8, §§ 1509(a), 3203(a)(4) and (a)(6) (2021) – The Division established Employer did not effectively implement its IIPP related to its soil-disturbing activities where the soil may have contained cocci fungal spores. The violation was properly classified as repeat-serious.

CONTROL OF HAZARDOUS SUBSTANCES – DUSTS, FUMES, MISTS, VAPORS AND GASES, RESPIRATORY PROTECTION, MEDICAL EVALUATION
Cal. Code Regs, tit. 8, § 5144(e)(1) (2021) – The Division established Employer did not provide clear direction to employees as to when masks should be utilized, nor specifically required mask usage, when its engineering controls were not feasible to prevent atmospheric contamination by cocci fungal spores, a general violation. Employer was not entitled to application of the §5144(c) exception, which applies where respirator use is not required

CONTROL OF HAZARDOUS SUBSTANCES – DUSTS, FUMES, MISTS, VAPORS AND GASES, RESPIRATORY PROTECTION, TRAINING AND INFORMATION
Cal. Code Regs, tit. 8, § 5144(k)(5) (2021) – The Division did not establish Employer failed to retrain employees regarding proper respirator use to protect against cocci spores.

Digest of COSHAB’s Decision After Reconsideration dated March 26, 2021, Inspection No. 1236440.

 

48 COR 40-8395 [¶23,101R]

JURISDICTION – PETITION FOR RECONSIDERATION, INTERLOCUTORY
Labor Code § 6614 (2021) – Even if Employer’s petition for reconsideration raised questions of law, which the Appeals Board may rule on under an exception to the general rule that interlocutory matters are not appealable, the Board declined to reconsider the petition based on its merits.

 OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD – TIME AND PLACE OF HEARING, VIDEO HEARINGS
Board reg. § 376(d) (2021) – The Appeals Board has authority to hold video hearings under its rules and procedures governing time and place of hearings. An executive order issued by the governor prohibited the Board from holding in-person hearings during the pendency of a state of emergency related to the COVID-19 pandemic.

 OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD – TIME AND PLACE OF HEARING, DUE PROCESS
Board reg. § 376.1 (2021) – The Appeals Board rejected Employer’s contention that it had a constitutional right to an in-person administrative hearing. The Board held that a video/electronic hearing provided sufficient due process in the administrative context.

Digest of COSHAB’s Denial of Petition for Reconsideration dated March 23, 2021, Inspection No. 316347038.

48 COR 40-8390 [¶23,099R]

JURISDICTION – PETITION FOR RECONSIDERATION, INTERLOCUTORY
Labor Code § 6614 (2021) – Even if Employer’s petition for reconsideration raised questions of law, which the Appeals Board may rule on under an exception to the general rule that interlocutory matters are not appealable, the Board declined to reconsider the petition based on its merits.

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD – TIME AND PLACE OF HEARING, VIDEO HEARINGS
Board reg. § 376(d) (2021) – The Appeals Board has authority to hold video hearings under its rules and procedures governing time and place of hearings. An executive order issued by the governor prohibited the Board from holding in-person hearings during the pendency of a state of emergency related to the COVID-19 pandemic.

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD – TIME AND PLACE OF HEARING, DUE PROCESS
Board reg. § 376.1 (2021) – The Appeals Board rejected Employer’s contention that it had a constitutional right to an in-person administrative hearing. The Board held that a video/electronic hearing provided sufficient due process in the administrative context.

Digest of COSHAB’s Denial of Petition for Reconsideration dated March 22, 2021, Inspection No. 1105855.

 

48 COR 40-8393 [¶23,100R]

JURISDICTION – PETITION FOR RECONSIDERATION, INTERLOCUTORY
Labor Code § 6614 (2021) – Even if Employer’s petition for reconsideration raised questions of law, which the Appeals Board may rule on under an exception to the general rule that interlocutory matters are not appealable, the Board declined to reconsider the petition based on its merits.

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD – TIME AND PLACE OF HEARING, VIDEO HEARINGS
Board reg. § 376(d) (2021) – The Appeals Board has authority to hold video hearings under its rules and procedures governing time and place of hearings. An executive order issued by the governor prohibited the Board from holding in-person hearings during the pendency of a state of emergency related to the COVID-19 pandemic.

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD – TIME AND PLACE OF HEARING, DUE PROCESS
Board reg. § 376.1 (2021) – The Appeals Board rejected Employer’s contention that it had a constitutional right to an in-person administrative hearing. The Board held that a video/electronic hearing provided sufficient due process in the administrative context.

Digest of COSHAB’s Denial of Petition for Reconsideration dated March 23, 2021, Inspection No. 1410726.

48 COR 40-8390 [¶23,098R]

JURISDICTION – PETITION FOR RECONSIDERATION
Labor Code § 6614(a) (2021) – 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 March 23, 2021, Inspection No. 1331340.

48 COR 40-8389 [¶23,097R]

JURISDICTION – PETITION FOR RECONSIDERATION
Labor Code § 6614(a) (2021) – 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 March 22, 2021, Inspection No. 1326533.

48 COR 40-8389 [¶23,096R]

JURISDICTION – PETITION FOR RECONSIDERATION
Labor Code § 6614(a) (2021) – 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 March 22, 2021, Inspection No. 1357982.