FLASH REPORTS

Flash: Indoor Heat Regulation Is Out

After years of waiting, Cal/OSHA finally unveils its regulatory proposal for indoor heat prevention. Here’s what it contains, and what happens next.

Flash: Cal/OSHA Finally Gets the Lead Proposal Out

More than a decade after first considering changes to Cal/OSHA’s lead standards, the agency has formally proposed sweeping revisions to the more than 40-year-old regulations. Here’s what they’re about.

ARTICLES

The Hidden Hazard

While hazards such as falls or being struck by a vehicle or object are major worksite issues, what’s going on inside an employee can be just as dangerous. Here’s what employers are doing to start dealing with the mental health crisis in construction.

Harwood Grants Open

Fed-OSHA has $13 million in safety and health training grants for the coming year. Here’s how to apply.

Catching Up on Major Cases

Cal/OSHA cited dozens of employers in fatality cases in the latter half of 2022. Here’s how these cases have progressed.

Workplace Fatality Update

The latest workplace fatalities in California involve a fall and a possible electrocution.

A Proud New Addition to Cal-OSHA Reporter

Meet Ursula Clemons-Heslip, our new Decisions Editor, but a familiar name in Cal/OSHA circles.

Stakeholders’ Say on Indoor Heat Proposal

Here’s what stakeholders had to say at a public hearing about Cal/OSHA’s proposal to prevent indoor heat illness.

Citations in Trench Deaths

Trench safety is a national concern. In California, three employers face almost $200,000 in penalties in the wake of two 2022 fatalities. Here’s what went wrong in these cases and how you can avoid these tragedies.

Video Hearings Rule Finalized

The Office of Administrative Law has approved new rules to govern Cal/OSHA Appeals Board video hearings. Here’s when they become effective, and what’s happening to the court challenges to the Board’s video hearing process.

CASES

FABRETTI & DEDINI, A PARTNERSHIP

49 COR 40-8665 [¶23,236R]

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD – BASIS FOR RECONSIDERATION
Labor Code § 6617 (2023) –  Employer’s petition failed to assert grounds upon which the Board may have considered reconsideration.

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD – FILING AN INTENT TO APPEAL AND LATE APPEALS
Cal. Code Regs, tit. 8, § 359(d) (2023) – An employer must initiate its appeal within 15 working days of its receipt of citations, unless it can demonstrate good cause for its late appeal. Employer had the opportunity to show good cause for the failure to appear within 15 calendar days, and thereafter Employer could have an additional 30 days to file a petition for reconsideration with the Board. The Administrative Order Dismissing Appeal was affirmed.

Digest of COSHAB’s Denial of Petition for Reconsideration dated March 29, 2023, Inspection No 1562245.

 

TRADEMARK CONSTRUCTION CO. INC. dba J.M.W. TRUSS AND COMPONNTS

 49 COR 40-8661 [¶23,235]

FALL PROTECTION – RELEVANT EVIDENCE
California Code of Regulations, title 8, § 1669(a) (2020) –. The evidence proffered by the Division, including worker testimony, as a whole, was sufficient to establish the violation and overcome Employer’s evidence when determining whether adequate fall protect was provided consistent with the regulation.

INDEPENDENT EMPLOYEE ACTION DEFENSE (IEAD)
Employer established two elements of the IEAD, demonstrating a well-designed safety program and that employees were action contrary to Employer’s safety instructions. Because the IEAD requires all five elements of the IEAD to be proved, the defense failed.

SERIOUS VIOLATION –  REBUTTAL OF CLASSIFICATION
Labor Code § 6432(c) (2020) – Failure to adequately supervise an employee supports a finding that the employer did not rebut the Serious classification.

ASSESSMENT OF CIVIL PENALTIES
The Citation, including a classification of Serious-Accident Related, was affirmed and an adjusted penalty of $7,200 was assessed.

Summary of COSHAB-ALJ’s Decision dated February 13, 2023, Inspection No. 1451264 (San Diego, CA)

ENGINE 53, INC. DBA CRAZY OTTO’S DINER

49 COR 40-8661 [¶23,234R]

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD – BASIS FOR RECONSIDERATION
Labor Code § 6617 (2023) –  Employer’s petition failed to assert grounds upon which the Board may have considered reconsideration.

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD – FILING AN INTENT TO APPEAL AND LATE APPEALS
Cal. Code Regs, tit. 8, § 359(d) (2023) – An employer must initiate its appeal within 15 working days of its receipt of citations, unless it can demonstrate good cause for its late appeal. Misunderstanding the appeal process is not good cause for a late appeal.

Digest of COSHAB’s Denial of Petition for Reconsideration dated March 9, 2023, Inspection No 1492543.

CIRCLE M TRUCK REPAIR, INC.

 49 COR 40-8657 [¶23,233]

REPORTING WORK-CONNECTED INJURIES – RELEVANT EVIDENCE
California Code of Regulations, title 8, § 342(a) (2020) – Full consideration is to be given to the negative and affirmative inferences to be drawn from all the evidence, including that which has been produced by defendant, when determining if a serious injury was reported within the required 8 hours.

 MISCELLANEOUS SAFE PRACTICES – MACHINERY AND EQUIPMENT
California Code of Regulations, title 8, § 3328(a)(2) (2020) –  Evidence at the hearing established that equipment in this case was used under conditions of speeds, stresses, loads, or environmental conditions that were contrary to the manufacturer’s recommendations, resulting in a serious injury.

INDEPENDENT EMPLOYEE ACTION DEFENSE (IEAD)
Employer failed to establish any elements of the IEAD with respect to an employee’s use of the air lift which fell on him causing a serious injury.

ASSESSMENT OF CIVIL PENALTIES
The Citations, including a classification of Serious-Accident Related, were affirmed and associated penalties of $14,850 were assessed.

Summary of COSHAB-ALJ’s Decision dated February 1, 2023, Inspection No. 1474269 (Bakersfield, CA)

 

QUEST DIAGNOSTICS NICHOLS INSTITUTE

49 COR 40-8657 [¶23,232R]

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD – BASIS FOR RECONSIDERATION
Labor Code § 6617 (2022) –  Employer’s petition failed to assert grounds upon which the Board may have considered reconsideration.

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD – JURISDICTION.
Labor Code § 6614(a) (2022) – The 30 day filing requirement for a petition for reconsideration is jurisdictional. The Board lacks jurisdiction to grant reconsideration when the petition is filed late. The petition for reconsideration was denied. The Administrative Order Dismissing Appeal was affirmed.

Digest of COSHAB’s Denial of Petition for Reconsideration dated March 6, 2023, Inspection No 1555357.

 

THE KROGER COMPANY dba RALPHS GROCERY COMPANY

49 COR 40-8655 [¶23,231]

INJURY AND ILLNESS PROTECTION PROGRAM –  EFFECTIVE HEALTH AND SAFETY TRAINING ON COVID-19 California Code of Regulations, title 8, § 3203(a)(7) (2021)
Employer utilized numerous methods to train its employees on the COVID-19 hazard and enforced the training through various means as well.  The Division did not meet its burden of establishing that Employer’s training constituted a failure to effectively train, a violation of § 3203(a)(7). 

INJURY AND ILLNESS PROTECTION PROGRAM –  METHOD OF TRAINING
California Code of Regulations, title 8, § 3203(a)(7) (2021) – A performance standard does not prescribe the precise method by which an Employer must provide training to employees on known or newly discovered hazards. The Division did not meet its burden of establishing that Employer’s training methods constituted a violation of § 3203(a)(7).

ASSESSMENT OF CIVIL PENALTIES
The Citation for a serious violation was vacated and associated penalty of $11,250 was set aside.

Summary of COSHAB-ALJ’s Decision dated February 2, 2023, Inspection No. 1486257 (Compton, CA)

TOTAL TERMINALS INTERNATIONAL, LLC

49 COR 40-8653 [¶23,230R]

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD – BASIS FOR RECONSIDERATION
Labor Code § 6617 (2021) –  Employer’s petition failed to meet its burden to show grounds upon which the Board may have considered reconsideration.

 

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD – GOOD CAUSE FOR LATE APPEAL
California Code of Regulations, title 8 § 359(d) – When an appeal is late due to the employer’s internal operating problems – which includes the mishandling of documents – the Board treats this as an example of an employer’s failure to handle an appeal with the requisite degree of care, and therefore not good cause for a late appeal.

 

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD – GOOD CAUSE FOR LATE APPEAL
California Code of Regulations, title 8 § 359(d) – The Board has never held that an employer’s burden to demonstrate good cause for a late appeal is lowered or eliminated because its appeal is only one day late.

Digest of COSHAB’s Denial of Petition for Reconsideration dated February 22, 2023, Inspection No 1572962.

S. C. ANDERSON, INC.

 49 COR 40-8649 [¶23,229]

DETERMINATION OF CITABLE EMPLOYER IN MUTLI-EMPLOYER WORKSITE – CONTROLLING EMPLOYER
California Code of Regulations, title 8, § 336.10(b) (2019) – While contractual language can be relevant to determining if  Employer met the definition of “controlling employer,” the Employer’s actual practices at the worksite were also considered in finding Employer was a controlling employer for purposes of liability for the violation. 

FLOOR, ROOF, AND WALL OPENING TO BE GUARDED – TEMPORARY RAILING AND TOEBOARDS OR BY COVERS
California Code of Regulations, title 8, § 1632(b) (2019) – When a safety standard includes two or more distinct requirements, if an employer violates any one of the requirements, it is considered a violation of the safety standard.

ASSESSMENT OF CIVIL PENALTIES
The Citation, including a classification of Serious-Accident Related, was affirmed and associated penalty of $14,400 was assessed.

Summary of COSHAB-ALJ’s Decision dated January 26, 2023, Inspection No. 1405107 (Bakersfield, CA)