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.

California business is ecstatic that there will be no exclusion pay requirement in the new two year extended covid standard being adopted by Cal/OSHA. Adding the labor sponsored provision would have delayed the impending proposal by several months.

Several significant and interesting fatality and injury cases have been settled between Cal/OSHA and employers. And the cases provide lessons employers should heed. Cal-OSHA Reporter provides compliance suggestions with the incidents.

There is some new and old legislation among the 2023 occupational safety and health legislation before the California legislature. Here’s a look at the proposals making their way through the statehouse.

A young farmhand working on a tomato harvester dies under mysterious circumstances. An organization that works to get to the bottom of workplace fatalities tells us what likely happened and how to prevent future tragedies like this one.

Here are the latest California workplace fatalities from recent days.

Cal/OSHA's much-anticipated revision to the lead standard has been formally published. It is already controversial. Here is what the proposal contains and the initial reaction to the massive changes.

The COVID state of emergency is over, thankfully. But employers still have COVID-related responsibilities.

An employer accuses Cal/OSHA of “underground rulemaking” in an injury case dating back to 2016. Here’s the Division of Occupational Safety and Health’s response in this battle in the California Court of Appeals.

This week’s fatality report from California includes a death in farm country, and the sad result of a recent industrial fire.

 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)

 

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.

 

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)

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.

 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)

49 COR 40-8643 [¶23,227R]

SAFE PRACTICES AND PERSONAL PROTECTION – PROVISION OF WATER
California Code of Regulations, title 8, § 3395(c) (2019) – Employees shall have access to potable drinking water meeting the requirements of Sections 1524, 3363, and 3457, as applicable, including but not limited to the requirements that it be fresh, pure, suitably cool, and provided to employees free of charge. The water shall be located as close as practicable to the areas where employees are working. 

SAFE PRACTICES AND PERSONAL PROTECTION – WATER LOCATED AS CLOSE AS PRACTICABLE TO WHERE EMPLOYEES ARE WORKING
California Code of Regulations, title 8, § 3395(c) (2019) – For purposes of the regulations “as close as practicable” means employers are required to locate water as close to the areas where employees are working as can be reasonably accomplished in order to encourage frequent water consumption, while taking into consideration the specific jobsite conditions.

REPEAT VIOLATIONS – SUBSTANTIALLY SIMILAR REGULATORY REQUIREMENT
California Code of Regulations, title 8, § 334(d) (2019) – Violations need not be precisely the same in order to establish a repeat classification.

ASSESSMENT OF CIVIL PENALTIES – REASONABLENESS OF PENALTIES
The Division did not provide evidence to support part of its proposed penalty, requiring the Employer be given the maximum credits and adjustments provided under the penalty-setting regulations such that the minimum penalty provided under the regulations for the violation was assessed. The Citation was affirmed and associated modified penalty of $27,000 was assessed.

Digest of COSHAB’s Decision After Reconsideration dated February 6, 2023, Inspection No. 1336276.

49 COR 40-8643 [¶23,228R]

OCCUPATIONAL SAFETY AND HEALTH APPEALS BOARD – BASIS FOR RECONSIDERATION
Labor Code § 6617 (2021) –  Employer’s petition failed to assert 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) – An  Employer’s lack of proficiency in English, an Employer’s misunderstanding of the appeal process, and an Employer’s abatement of the cited violations do not constitute good cause for a late appeal.

Digest of COSHAB’s Denial of Petition for Reconsideration dated February 3, 2023, Inspection No 1565022.

 

49 COR 40-8644 [¶23,226R]

INJURY AND ILLNESS PREVENTION PROGRAM (IIPP) – PROCEDURES FOR IDENTIFYING AND EVALUATING WORKPLACE HAZARDS
Cal. Code Regs, tit. 8, § 3203(a)(4) (2018) – Employer failed to establish, implement, and maintain an effective IIPP, because it did not effectively implement its procedures for identifying, evaluating, and correcting hazards associated with suspended loads, a general violation.

INJURY AND ILLNESS PREVENTION PROGRAM (IIPP) – PROCEDURES FOR CORRECTING UNSAFE OR UNHEALTHY CONDITIONS
Cal. Code Regs, tit. 8, § 3203(a)(6) (2018) – In a § 3203(a)(6) citation, the issue is generally not that the IIPP is flawed, but that the employer has neglected to implement that IIPP by failing to correct a hazard at the workplace. It is insufficient to simply tell employees to avoid the hazards posed by both pinch points and contact with suspended loads, without actually correcting either hazard.

CRANES AND OTHER HOISTING EQUIPMENT – SLINGS, SAFE OPERATING PRACTICES, EMPLOYEES KEPT CLEAR OF LOADS ABOUT TO BE LIFTED AND OF SUSPENDED LOADS
Cal. Code Regs, tit. 8, § 5042(a)(9) (2018) – Employer failed to keep an employee clear of a suspended load, a serious, accident-related violation. The purpose of the regulation is to protect employees from all the hazards of a suspended load, not just the danger of being immediately underneath a suspended load.

DEFENSES – INDEPENDENT EMPLOYEE ACTION
The Independent Employee Action affirmative defense (IEAD) is premised upon an employer meeting all five elements of the defense. Employer failed to meet four of the five elements. Further, a safety program in direct violation of a safety order cannot be well-devised.

Digest of COSHAB’s Decision After Reconsideration dated  January 23, 2023, Inspection No. 1300984.