Regulatory Update for January 2015
Two important new safety and health regulatory changes that took effect on January 1st and which affect all California employers are as follows:
AB 326, “Occupational Health & Safety: Reporting Requirements” (now in Section 6409.1(b) of the Labor Code) now allows employers to report work-related deaths or serious injuries or illnesses to the Division of Occupational Safety and Health (Cal/OSHA) by telephone or via e-mail. However, the e-mail address to be used for reporting fatalities and serious injuries to Cal/OSHA is not yet known to many and is not readily apparent on their website. It is: email@example.com. For your reference, the telephone numbers for the Bay Area district offices of DOSH are provided on our website under the ‘Resources’ tab.
Employers are still required to make their reports of work-related deaths or serious injuries or illnesses “immediately”, which means “as soon as practically possible but not longer than 8 hours after the employer knows or with diligent inquiry would have known of the death or serious injury or illness. If the employer can demonstrate that exigent circumstances exist, the time frame for the report may be made no longer than 24 hours after the incident.” A “serious injury or illness” still means one which “requires inpatient hospitalization for a period in excess of 24 hours for other than medical observation or in which an employee suffers a loss of any member of the body or suffers any serious degree of permanent disfigurement.” If you are ever in doubt about whether to report or not, our advice is to report, rather than face the prospect of a $5,000 fine from DOSH for a failure to report in accordance with the regulations.
A second important regulatory change has been implemented as a result of AB 1634, “Occupational safety and health: Violations” and changes the way that Cal/OSHA issues abatement credits for serious violations. “Emergency regulations” have been published by the Department of Industrial Relations to implement these changes and are found in 8 CCR 333(b) and 336(e). The Department has indicated that it intends to issue permanent regulation, but stated that the emergency rules are needed to avoid a conflict that could prohibit an abatement credit in cases where an employer has not appealed a serious violation.
Previously, DOSH was required to reduce the penalty for serious violations (but not for Repeat or Willful violations) by 50% (credit) on the presumption that the employer will correct the violations by the abatement date. As a result of AB 1634, DOSH may not grant an abatement credit unless the employer has actually abated the hazardous condition. Abatement can be verified through a follow-up inspection by Cal/OSHA or when the employer submits a signed statement (along with supporting evidence, if necessary to prove abatement) that abatement has occurred. The statement must be received by DOSH within 10 working days after the end of the period stated in the citation for abatement. AB 1634 is covered in greater detail in another article in this issue of our newsletter.
Federal OSHA is likely to re-introduce regulatory measures to address issues such as:
· OSHA Reform
· VPP Codification
· Safe Patient Handling
· Combustible Dust
· Logging Operations
However, the chances of a new rule being promulgated in 2015 for any of these topics is essentially zero. The one and only OSHA rule that was issued in 2014, was the change in the requirement for employers to report all work-related fatalities to the agency (effective January 1) within 8 hours and all serious injuries (i.e., hospitalization, amputation, or loss of an eye) within 24 hours. Both the Federal and Cal/OSHA reporting requirements are now aligned (see discussion above).
According to the Federal OSHA Regulatory Agenda, two rules that are expected to become final in 2015 are the Confined Spaces in Construction standard and new requirements for Electronic Recordkeeping/Reporting. There has been no movement on the proposed revised standard for exposure to crystalline silica that has been languishing in the review process for several years now, but the OSHA calendar indicates that the latest round of stakeholder comments are due to be analyzed by June this year, with the intent of issuing a final rule by the spring of 2016.
Please call if you have any questions concerning these new regulatory changes or any other Cal/OSHA requirement.