New California Law, Definition of “Serious Violation” Strengthens Cal/OSHA’s Enforcement Authority
California law requires an employer to provide employees with a safe workplace and authorizes the California Division of Occupational Safety and Health (DOSH) to enforce health and safety standards in places of employment. This includes investigating, issuing citations, and imposing civil penalties when an employer commits a serious violation that causes an employee to suffer or potentially suffer, among other things, “serious injury or illness” or “serious physical harm”.
A.B. 2774 rewrites California Labor Code 6432, making several changes including, but not limited to the following:
- Establishes a rebuttable presumption as to when an employer commits a serious violation
- Defines “serious physical harm”
- Establishes new procedures and standards for an investigation
- Outlines new Division determinations of a “serious” violation by an employer which causes harm or exposes an employee to the risk of harm
Why is A.B. 2774 important?
Before A.B. 2774 was enacted, California law provided that a “serious violation” was deemed to exist in a place of employment if there was substantial probability that death or “serious physical harm” could have resulted from a violation, but the law failed to address important definitions. Therefore, the existence or lack of an adequate definition of “serious physical harm” affected the ability of “serious violations” proposed by the DOSH to be upheld throughout the appellate process. Critics of the former law allege that the lack of a statutory definition of “serious physical harm” resulted in too many citations issued for serious injuries or fatalities to be reclassified under lower, less serious violations.
The passage of the new law, A.B. 2774, addresses the issues of significant concern about how “serious violations” are defined and cited under California law and imposes a rebuttable presumption that a “serious violation” exists in a place of employment if DOSH demonstrates that there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation.
What are the important implications of the new law for California employers?
Key implications of A.B. 2774 for employers subject to Cal/OSHA enforcement include:
- As a result of the statutory definition of “serious physical harm” the number of citations for serious violations issued by Cal/OSHA is likely to increase
- Citations Cal/OSHA issues for the classification of “serious” verses general or regulatory is likely to increase
- Employer success with appeals in regards to serious violations will be more difficult because the Division must only demonstrate there is a “realistic possibility” that death or serious physical harm could result from a hazard
- Cal/OSHA will now be able to prove the existence of serious violations based only on inspector testimony
- Injured employee claims are likely to increase corresponding with increases in workers’ compensation benefits which may be directly correlated to the number of citations for serious violations
What steps can employers take to be prepared?
Employers should reassess their occupational safety and health programs, to include sufficient employee and supervisory training to prevent violations and eliminate employee exposures. Another important element is ensuring that all of the required to post and mandatory to communicate state and federal labor law postings are posted in the workplace in areas frequented by employees and applicants. Also, posting industry specific posters is a great way to reinforce those subject areas where employees and supervisors have received training. Compliance Poster Company has all of your state, industry specific and federal labor law posters. Don’t subject your company to violations.
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