ab 2774: understanding the new cal/osha law and how to ... 2774 - understanding the new cal … ·...
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AB 2774: Understanding the new Cal/OSHAlaw and how to minimize its impact
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Don Dodson, ARM, CPDM, COSSSafety & Risk Management
Steve Thompson, ARM, COSSSafety & Risk Management
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Agenda
Background: how did we get here?
New requirements: what does AB 2774 mean?
What can be done to minimize its impact?
Questions and Discussion
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DISCLAIMERSDISCLAIMERS
1. Became effective January 1, 2011 so no Court cases torely upon for interpretation.
2. The Division of Occupational Safety & Health (DOSH)Policy & Procedures Manual has not been updated asof January 20, 2011. Specific instructions ComplianceOfficers will be use to enforce the new law is unknown.
3. This is a quick overview…
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Background: How did we get here?
“Let me be clear, there is a new sheriff in town”
“We’ll accomplish this [increased workerprotections] through tough enforcement,transparency, cooperation and balance”
U. S. Secretary of Labor Hilda Solis told a crowd of a couple hundred Department ofLabor staff, government officials and political supporters at her swearing-in ceremony
Friday, March 13, 2009.
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Background: How did we get here?
Federal OSHA critical of California’s “delegatedstate” plan as being lax on serious violations:
Federal OSHA -> 77% of all citations classified as serious
All State plans -> 43% serious
California -> only 19% serious – lowest
Federal OSHA wants California to significantlyincrease violation penalties.
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Background: How did we get here?
Critics of Cal/OSHA claim far too many citationsissued after serious injuries or fatalities arereclassified downward to general violations uponAppeal. This reduces penalties to a maximum of$7,000 each, but often much less. Seriousviolation penalties are up to $25,000 each.
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Background: How did we get here?
Critics, including many DOSH staff, complain thatthe Occupational Safety & Health Appeals Board(OSHAB) limits the definitions and criteria forupholding serious violations:
“serious injury or illness” [LC 6302(h)]
“substantial probability”
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Background: How did we get here?
Speaking of OSHAB overturning seriousviolation allegations:
“That is impractical, unrealistic and calculated tomake it almost impossible for us to meet ourburden [of proof].”
DOSH Chief Len Welsh
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New Requirements: What does AB2774 mean?
“One way to look at it is a complete reboot onhow to approach serious violations inCalifornia. From my point of view, it is a cleanslate. Instead of having that impossibleformula the Appeals Board was forcing on us,we now have an approach that at leastconceptually comports to a modern concept ofhow to approach hazards.”
DOSH Chief Len Welsh
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New Requirements: What does AB2774 mean?
“It’s an extremely important change in the law.It changes a fundamental definition inclassifications. It’s certainly the largest changein the eight years I’ve been here.”
DOSH Chief Counsel Amy Martin
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New Requirements: What does AB2774 mean?
Pre-1/1/2011 Labor Code Section 6432 totallyrepealed and replaced with new Section 6432:
Establishes first ever “rebuttablepresumption” in Safety Orders!
no longer a “level playing field” and nolonger “presumed innocent until provenguilty”; employer must overcome DOSH’s“alleged violation descriptions (“AVD”) itintends to cite as serious.
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New Requirements: What does AB2774 mean?
Pre-1/1/2011 Labor Code Section 6432 totallyrepealed and replaced with new Section 6432:
“realistic possibility” now replaces old“substantial probability” (e.g. 51%)
Who defines “realistic?” DOSH!
Isn’t anything a “possibility?”
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New Requirements: What does AB2774 mean?
Pre-1/1/2011 Labor Code Section 6432 totallyrepealed and replaced with new Section 6432:
+ “The demonstration of a violation by thedivision is not sufficient by itself to establishthat the violation is serious. The actualhazard may consist of, among other things:
(1) A serious exposure exceeding anestablished permissible exposure limit.”
[emphasis added]
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New Requirements: What does AB2774 mean?
Pre-1/1/2011 Labor Code Section 6432 totallyrepealed and replaced with new Section 6432:
+ “… The actual hazard may consist of,among other things:
(2) The existence in the place ofemployment of one or more unsafe orunhealthful practices, means, methods,operations, or processes that have beenadopted or are in use.” {LC 6432(a)}
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New Requirements: What does AB2774 mean?
New Section 6432(b)(1):
+ “Before issuing a citation alleging that aviolation is serious, the division shall make areasonable attempt to determine, amongother things, all of the following:
(A) Training for employees and supervisorsrelevant to preventing employee exposureto the hazard or to similar hazards.”
How “similar” is “similar?”
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New Requirements: What does AB2774 mean?
New Section 6432(b)(1):
+ “… reasonable attempt to determine,among other things, all of the following:
(B) Procedures for discovering, controllingaccess to, and correcting the hazard orsimilar hazards.
Again, how “similar” is “similar?”
Likely “cookie cutter” IIPP’s will fail.
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New Requirements: What does AB2774 mean?
New Section 6432(b)(1):
+ “… reasonable attempt to determine,among other things, all of the following:
(C) Supervision of employees exposed orpotentially exposed to the hazard.
Does “potentially exposed” mean the nextbuilding, the plant in L.A., another job site?
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New Requirements: What does AB2774 mean?
New Section 6432(b)(1):
+ “… reasonable attempt to determine,among other things, all of the following:
(D) Procedures for communicating toemployees about the employer’s healthand safety rules and programs.
CAUTION: “cookie cutter” IIPP’s likely fail.
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New Requirements: What does AB2774 mean?
New Section 6432(b)(1):
+ “… determine, among other things, all ofthe following:
(E) Information that the employer wishes toprovide, at any time before citations are issued,including, any of the following:”
(i) employer’s explanation of circumstances
(ii) why employer believes not a serious violation
(iii) employer belief its actions were “reasonableand responsible”
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New Requirements: What does AB2774 mean?
New Section 6432(b)(2):
“The division shall satisfy its requirements … inparagraph 1 [above] if, not less than 15 days prior toissuing a citation for a serious violation, the divisiondelivers to the employer a standardized formcontaining the alleged violation descriptions (“AVD”)it intends to cite as serious and clearly soliciting theinformation … in this subdivision.” [emphasis added]
That’s all they have to do?
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New Requirements: What does AB2774 mean?
New Section 6432(c): “If the divisionestablishes a presumption … the employermay rebut … and establish that a violation isnot serious by demonstrating that theemployer did not know and could not, with theexercise of reasonable diligence, have knownof the presence of the violation.”
“demonstrating” is not same as stating,pleading, mentioning or pouting.
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New Requirements: What does AB2774 mean?
New Section 6432(c): “The employer mayaccomplish this by demonstrating both of thefollowing:
(1) “The employer took all the steps areasonable and responsible employer inlike circumstances should be expected totake, before the violation occurred, …”
miss one “step” you lose!
“expected to take” is not generally done
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New Requirements: What does AB2774 mean?
New Section 6432(c): “The employer mayaccomplish this by demonstrating both of thefollowing:”
(1) “… to anticipate and prevent the violation,taking into consideration the severity of harmthat could be expected to occur and thelikelihood of that harm occurring inconnection with the work activity …”
Evidence of failure are injuries or illness.
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New Requirements: What does AB2774 mean?
New Section 6432(c): “The employer mayaccomplish this by demonstrating both of thefollowing:” [and]
(2) “The employer took effective action toeliminate employee exposure to the hazardcreated by the violation as soon as theviolation was discovered.”
Preserve evidence and effectively excludeany further exposure.
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New Requirements: What does AB2774 mean?
New Section 6432(d): “If the employer doesnot provide information in response to adivision inquiry made pursuant to subdivision(b), the employer shall not be barred frompresenting that information at the hearing andno negative inference shall be drawn.”
Sounds nice …
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New Requirements: What does AB2774 mean?
New Section 6432(d): “… The employer mayoffer different information at the hearing thanwhat was provided to the division and mayexplain any inconsistency, but the trier of factmay draw a negative inference from theprior inconsistent factual information.”
[emphasis added]
WOW! Potentially gone are the severalmonths to prepare your Appeal!
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New Requirements: What does AB2774 mean?
New Section 6432(e): “‘Serious physicalharm,’ as used in this part, means any injuryor illness, specific or cumulative, occurring inthe place of employment or in connection withany employment, that results in any of thefollowing:” [emphasis added]
Remember, complaints of limiting definition toold “serious injury or illness” test.
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New Requirements: What does AB2774 mean?
New Section 6432(e): “… that results in anyof the following:
(1) Inpatient hospitalization for purposesother than medical observation.”
No longer “in excess of 24 hours” andmaybe for “future medical care” years later.
“(2) The loss of any member of the body.”
How about removing herniated discs?
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New Requirements: What does AB2774 mean?
New Section 6432(e): “… that results in anyof the following:
(3) Any serious degree of permanentdisfigurement.
(4) Impairment sufficient to cause a part ofthe body or the function of an organ tobecome permanently and significantlyreduced in efficiency on or off the job, …”
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New Requirements: What does AB2774 mean?
New Section 6432(e): “… that results in anyof the following:
(4) “ … including but not limited to, dependingon the severity, second-degree or worseburns, crushing injuries … respiratoryillnesses, or broken bones.”
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New Requirements: What does AB2774 mean?
New Section 6432(f): “Serious physical harmmay be caused by a single, repetitive practice,means, method, operation, or process.”
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New Requirements: What does AB2774 mean?
New Section 6432(g) {whew, finally}: “Adivision safety engineer or industrial hygienistwho can demonstrate, at the time of thehearing, that his or her division-mandatedtraining is current shall be deemed competentto offer testimony to establish each element ofa serious violation, and may offer evidence onthe custom and practice of injury and illnessprevention in the workplace that is relevant …”
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New Requirements: What does AB2774 mean?
“For those in the employer community who are notpaying attention, they may be losing tremendousopportunities to work with DOSH even in anenforcement setting to make sure they get a properresult. … Those who are in a position of strength,having done their homework and paid attention to theinspection, and knowing their operation better thanDOSH, can bring facts to our attention that we mayhave missed.”
DOSH Chief Len Welsh
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New Requirements: What does AB2774 mean?
Remember: once a serious violation isissued, it is a permanent black mark on anemployer’s safety record, regardless of theoutcome of the case.“It’s in IMIS [the federal Integrated Management Information
Service] forever and it can’t be removed. … Employers don’t likethat and I don’t blame them. What this does is give employers anopportunity to dialogue with Cal/OSHA and challenge what wethink we found in terms of serious violations, and persuade usthat perhaps we’re not correct.” DOSH Chief Len Welsh
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What can be done to minimize itsimpact?
Document, document, document; thendocument the process of documentation!
“No longer will those cheap and canned IIPPsbe acceptable. An incomplete or amateur IIPPcan generate as much as a $5000 fine for anemployer. And employers are starting torealize they can come back against brokers’E&O for the fine and legal expenses if thebroker provides it and a ticket is generated.”
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What can be done to minimize itsimpact?
Employers must be able to “demonstrate” thatthey “are paying attention” (DOSH Chief Len Walsh)
Defense expert Kevin Bland, Esq. says, “Butyou should be alarmed if you only have apaper safety program that doesn’t have anyteeth. … By applying the ‘realistic probability’standard, we as employers get to assert anaffirmative defense.”
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What can be done to minimize itsimpact?
“An employer can argue that because of itssafety and training programs, it would behighly unusual that an incident would occur asthe result of a violation. Or if there were anincident that led to an investigation, theemployer could assert that it was an isolatedincident because the firm’s safety program isrobust.”
Workers’ Comp Executive, Kevin Thompson
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What can be done to minimize itsimpact?
Likely the number of citations for serious violations willincrease, in part because of expanded definition of“serious physical harm” and change from “substantialprobability” to “a realistic possibility that death orserious physical harm could result from the actualhazard created by the violation.”
Key words are “anticipate,” “prevent” and eliminateemployee exposures.
Paul, Hastings, Janofsky & Walker, LLP
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Additional Resources
1. Cal-OSHA Reporter® WebinarJanuary 26, 2011 at 10:00 A.M. PSTCall 916-774-4000 or online$139.00 per “site license”
2. Google™, Bing™ Yahoo™, etc. searchAB2774, “AB 2774” and “Labor Code 6432”
3. Your insurance broker and carrier
4. Cal/OSHA Consultation Service
NOT same as DOSH Enforcement!!!
5. Consultants
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Questions and Discussion
Thank you very much!
Donald E. Dodson, ARM, CPDM
Steve Thompson, ARM, COSS
Aspen Risk Management Group
Web: www.aspenrmg.com
Phone: (619) 294-9863
2011 Webinar and Training Calendarhttp://www.aspenrmg.com/training.htm