Cal/OSHA Chief Ellen Widess yesterday announced a Special Emphasis Program on confined space compliance, following a series of confined space deaths in 2011. Employers can expect, at the minimum, that any future inspection will include not just a request to review your IIPP and Heat Illness programs, but your written Confined Space plans as well.

We suggest that you inventory your facilities to determine whether you know of all spaces which could be considered confining, and update your written program and training. See Title 8 California Code of Regulatons section 5156 to 5158 for the technical stuff.

In practice, the requirements for a successful confined space program are so onorous that we recommend that all but the most sophisticated and resource-rich employers do everything possible to eliminate the need for their employees to enter confined spaces. For starters, there is the requirement that two employees be present: One inside and one as a hole watch outside who is trained in extraction of a downed employee. That’s person-power. Second, while most employers will want to rely on first responders (Fire, paramedics, etc.) for rescue and treatment, that help must be no more than five minutes away. Few employers can guarantee that level of response… unless they have fully trained in-house teams.

If you do decide to create your own plan, you should invest in the assistance of an experienced (preferably Certified) Industrial Hygienist to be sure you get it right. Once your plan is in place and has been tested, we recommend you invite Cal/OSHA Consultation (not Enforcement!) in to observe a simulated event.

We also recommend that your employee training, whether you require entry or not, include the warning that fully 60% of confined space victims are those who attempt to rescue the first victim.

Finally, we wondered how long a Special Emphasis Program lasts? We don’t know, but there are “active” emphasis programs listed on the Fed/OSHA website which were adopted in 2006.

Pursuant to Labor Code section 6409.1(b), Title 8 California Code of Regulations section 342(a) requires employers to “immediately” report the serious injury, illness or death of an employee occurring in a place of employment or in connection with any employment. Failure to do so leads to a $5,000.00 fine.

This mandate was enacted by the Legislature after being told that California employers were deliberately hiding deaths, etc. from Cal/OSHA’s attention. The law’s intent is to ensure that Cal/OSHA is made aware of serious incidents quickly enough to promptly investigate and, if necessary, order changes in the workplace.

“Immediately” means within eight (8) hours of when the employer knows or should know that the injury or illness is serious. “Serious injury or illness” for purposes of this reporting requirement is defined as one that requires inpatient hospitalization for more than 24 hours for other than observation, a loss of a member of the body (amputation) or a serious degree of permanent disfigurement.

But what about those cases when the injury does not become “serious” until much later? That question was addressed seven years ago by the Occupational Safety and Health Appeals Board (OSHAB) in DuBug #7 Cal/OSHA App. 92-1329 Decision After Reconsideration (June 29, 1995). The answer then was that the reporting requirement is triggered when the employer becomes aware of the seriousness of the injury – whenever the injury becomes “serious” and regardless that the employer was not intentionally hiding the fact of the injury. The Board, in other words, upheld the strict language of the law without reference to its purpose.

One of our clients learned their lesson the hard way: A new fire chief discovered an injury report which should have been reported to Cal/OSHA six months before he took over. So he did the right thing. Result? Cal/OSHA chose not to investigate the accident, but gave him a reporting citation and $5,000.00 fine to explain to his City Council.

An Update (of sorts): When the Appeals Board took this issue up again, on its own motion, four years ago we hoped for a change.

What we expected

The case, Santa Rosa City Transit and Parking Department Cal/OSHA App. 05-1417 Decision After Reconsideration (Oct 6, 2011), involved injury to an employee that was not immediately “serious”. The facts, as stipulated by the parties to the appeal were as follows:

2/22/02: Employee sustains non-serious injury.
6/14/02: Employee has surgery and spends more than 24 hours in hospital
7/22/02: Employer’s workers’ comp unit is made aware of surgery.
10/1/04: Employee reports her own injury to Cal/OSHA.
3/4/05: Cal/OSHA cites the employer for failing to report the hospital stay within 8 hours.

Employer appealed the citation and the case was submitted to an Administrative Law Judge (ALJ) for decision on the agreed facts. On September 14, 2007 the ALJ upheld the citation, based upon the DuBug #7 precedent. The Appeals Board ordered reconsideration of the case on October 19, 2007. Since that time we have watched and waited, and waited some more. The Decision After Reconsideration was finally issued on October 6, 2011.

What we got

After four years of contemplation, the Appeals Board, in a two page decision, stuck with the DuBug #7 rule and upheld the citation. No explanation provided. What we got, really, was a triumph of form over substance. And the perpetuation of a “gotcha!” for California employers.

Well, if you don’t want an honest answer, don’t ask. The question posed to a high-ranking insider was: “What do the people in Cal/OSHA think of our firm?”

Our source went on to say that while it may be an overstatement to say that ALL of the Division’s COSHOs hate us, we are generally seen as enemies of the public good whose function is to thwart OSHA’s efforts to make employees safe from harm in the workplace, while our clients are seen collectively as the inspiration for Homer Simpson’s boss, Mr. Burns.

While it is true that we do our damnedest to insure that our clients’ interests are protected, our critics miss the broader purposes of our representation. We take our firm’s motto “Prevention, Protection, Defense” seriously. Those goals are listed in the order we like to invoke them:

• Prevention: To work pro-actively with our clients and the safety community to help prevent accidents from occurring in the first place. That is why we donate a substantial amount of our time each year to groups like ASSE, NSMS, AGC’s Safety and Health Council, The Safety Expo, client seminars and in countless “Got a sec?” telephone consultations with employers and safety professionals.

• Protection: To protect our clients from being cited in the first place, or a second time, by working with them and their safety people to ensure – to the extent possible – that their safety programs, procedures and equipment meet regulatory mandates. Here we often find ourselves acting as educators explaining to our clients, as best we can, what the regulations require, assuring them that Cal/OSHA does not hate them, and working out realistic abatement solutions in three-way conversations between our clients, safety professionals and us.

• Defense: And, finally, to defend our clients against citations to the limits of our ethical boundaries, ensuring to the best of our abilities that no client accepts a citation which is not well-supported and appropriate for the acts or omissions giving rise to the citation.

Because so much of our time is spent wrangling with Cal/OSHA it sounds odd even to us, but considered in this broader context, our work is actually complimentary to the Division’s. We are the last stop in the evaluation process before a citation’s validity is considered by the Appeals Board. If we can be convinced that a citation is appropriate, it probably is. And we settle far more cases than we take to hearing.

Now, here is something for our friends in the Division to consider: Employers, even “good” ones and especially ones who have never been inspected before, can be intimidated and made to feel defenseless – even terrified – by your conduct. Every COSHO has the power to damage reputations and to put employers, especially small ones, out of business. This can be done as effectively with an inflammatory press release as with a willful citation. So we ask that you keep this in mind, because it is also part of our job to protect employers from your excesses.

And we don’t mind being hated for that. As one client recently said to us, “We hired you because you are not afraid of OSHA.”

We have blogged twice now about our concerns that Cal/OSHA’s new 1BY form is a trap for the unwary, designed more as an enforcement tool than a true invitation to “dialogue” with employers before serious citations are issued. But to recap, why are we concerned about the 1BY form?

First, the employer’s response portion of the form ends with the employer saying that the information included is “true and correct to the best of my knowledge.” Why is that so bad? Well, according to Cal/OSHA’s Chief Counsel Amy Martin, the purpose of the form is to lock employers into a narrative on the causes of a citation. Any changes to that narrative will be held up as reason to doubt the, um, veracity of the employer. Second, this new form is intended to assist Cal/OSHA in issuing “bullet-proof” citations, based on admissions by the employer.

Third, we have heard from more than one district manager that they don’t even bother to read the employer’s submission before issuing the citation. Or if they do, it is to change the cited regulation to one more likely to stick.

So, our default position remains that there is no up-side for an employer who fills out the form.

Now let’s talk about how to work with Cal/OSHA without creating more liability than you started with. Assume that you have received a letter from Cal/OSHA advising you of its intent to issue a serious citation and inviting you to respond within 15 days. We have two suggestions which do not include completing the 1BY form:

First, request a face-to-face meeting to explain your position. At that meeting, if appropriate, bring outside support. We recently talked to a small painting contractor facing some severe lead monitoring and abatement citations. In that case, writing out all of the arguments against being cited would take too much time from work. And as her main arguments depended on information from a lead abatement expert, it made more sense to try to set up a conference.

Here’s another: Where a written response does make sense, put your arguments in a letter, rather than the form. The primary advantage here is that you will accomplish the intent of AB 2774 by providing Cal/OSHA with the information they need to make an informed decision not to cite. And you don’t close the door to later providing additional information or insights.

New Cal/OSHA Chief Ellen Widess recently took a victory lap in an e-mail to her employees celebrating the accomplishments of her first 100 days. As you would expect, her catalog of victories was long on rhetoric and short on accomplishments. To give her some credit, she is hampered by Governor Brown’s prohibition against hiring and travel. Hard to run a state agency with only one of those restrictions, let alone both.

Two themes recur in Widess’s statements since taking the helm. The first is her declaration that she does not have the time or the disposition to play the “gotcha” game. The second is her determination to focus Cal/OSHA’s energies on weeding out California’s “bad” employers.

The first is easy to understand. Every new head of an administrative agency with the power to enforce a myriad of rules broad and specific says the same. And given the budgetary limits on her powers, she is wise to support substance over form.

The second is more problematic. When asked directly who is a bad employer, she has no clear answer. She talks generally about employers in the underground economy and mentions the lives saved by rigorous enforcement of the heat illness standard. But as to specifics, the best she, Deputy Chief of Enforcement Chris Lee and Chief Counsel Amy Martin can do is to point to T. L. Pavlich Construction, Inc., an underground construction company based in Southern California.

Late last year, a worker for T L Pavlich suffered burn injuries in a flash fire while inside a pipe. The job site where the accident occurred was placed under an OPU (Order Prohibiting Use, a topic for a later blog); the rest of the company’s job sites on this miles-long project were not. But when the Division’s inspector learned that the same work was being performed at the other sites, it didn’t matter that the work was being performed both safely and in accordance with the regulations.

The result was, in rapid order, multiple Serious Willful citations related to the pre-OPU incident, referrals to the local DA and City Attorney urging criminal prosecution and to the CSLB urging it to investigate whether the company’s license to work should be revoked. And multiple news releases castigating the company.

The facts, however, are that 1) the OPU was written and communicated poorly; 2) the company is decades old and has no significant history of citations; 3) since 2000 it has worked on 10 underground construction jobs for public entities, averaging 13 workers per job at an average cost of $5,517,152.00; 4) its workers’ compensation experience modification rate over the past 11 years has averaged 0.86, with no year over 1.0; 5) the company has received numerous safety commendations, and 6) the worker involved is a long-term, well-trained union-certified journeyman welder.

But none of that mattered to Cal/OSHA. It appears that who is “bad” and who is not lies in the eye, and the agenda, of the beholder.

About 20 minutes into an employers’ seminar about getting ready for OSHA, we say something like “Now, let’s talk about reporting serious injuries to OSHA”. This is followed by few moments of people looking like a highschool class reacting to an announcement of a pop quiz on Monday morning. When the mounting tension has built to uncomfortable level, we ask if the group is aware of this requirement. Usually about 10 percent of the crowd raises their hands.

It happens every time. We like it because it is a topic that engages almost everyone in the audience. We don’t like it because it reminds us that there are so many employers that do not have this information readily available to them.

We hope this helps:

The Rule: If an employee is killed or sustains a serious illness or injury on the job or in connection with the work activity, the employer is required to report the event to OSHA. (Title 8 California Code of Regulations (CCR) section 342(a))

Who: The employer (via manager or supervising employee) must make this call. A call by the local fire department, EMT or your insurance agent is not enough.

When: The report must be made within eight hours of the point in time when the employer becomes aware of the injury or should have (this means keeping track of your employees’ condition post incident is required). The eight hours includes evenings and weekends.

Why: From OSHA’s perspective, the report is required to allow OSHA to quickly investigate hazards and make sure there is no danger of further injury. From the employer’s view you may also consider that you will face a $5,000 penalty for failure to timely report.

What: What is serious? The regulations (Title 8 CCR section 330(h)) take a lot of the guesswork out of this. An injury is serious when it involves an amputation, permanent disfigurement (think scarring or crushing injury) and / or more than 24 hours of hospitalization for something, anything, other than observation.

Where: The report must be made to the OSHA office closest to the place of the incident. A list of offices is available at: http://www.dir.ca.gov/dosh/DistrictOffices.htm

How: The regulation requires a report by telephone or telegraph. Not kidding. So, call it in.

There it is. This is a simple discussion of a simple rule in a world that is never that simple (the legal world anyway). Each of the issues addressed above have been litigated, explained, and interpreted enough to rip the simplicity right of them. If you are in a position of having to decide to make a report or not and have any questions, ask. Don’t wait until it is too late. A late call is as much of a violation as no call at all.

Any employers interested in starting a business in California should stick in their ear buds, put the Eagles’ “Hotel California” on continuous loop and settle in to read Senate Bill 829.

As last year’s Assembly Bill 2774 was a game-changer for employers and Cal/OSHA, this bill turns the Appeals Board’s world upside down. The bill was written by labor and employee advocates (specifically the Building and Trades Council and Worksafe!), without input from – much less a head’s up to – Cal/OSHA, the Appeals Board or employers. Here’s a summary of some, but not all, of the changes the bill would make to the Appeals Board:

• The Appeals Board would no longer be an autonomous, impartial court. It would become an arm of Cal/OSHA, directed to “liberally construe” rules and regulations “to carry out justly the letter and spirit” of the law, and obligated to follow procedures adopted for it by Cal/OSHA.
• The circle of persons and entities who may become parties to an appeal would be enlarged to include any union with a collective bargaining agreement with the employer (not just an affected employee’s union), a deceased worker’s successors in interest and their attorneys, and “any other person or entity…in the interests of justice.”
• The Board must “ensure that all parties participate fully in any hearing…and in settlement.” Any party may object to a settlement reached between Cal/OSHA and the employer.
• Filing an appeal will no longer automatically stay abatement of an alleged hazard. Instead, the employer would have to advise the Board by verifying in its appeal that it contests abatement. If a party objects to staying abatement, the employer may pay $250.00 for the right to request an expedited hearing on the necessity of abatement.
• In addition to appeal and hearing notice requirements, the employer will also be required to serve copies of notices on “each union, if any, with which it has a collective bargaining agreement.”
• The Board “shall” allow Cal/OSHA to add, delete or amend any of its citations at any time before the appeal hearing is closed. Employers may be granted amendments upon proof justifying the amendment.
• The Board may award Cal/OSHA fees and costs up to $5,000 if the employer withdraws its appeal or loses after hearing, and the Board finds that the appeal was filed in “bad faith” or that the employer had no factual basis for filing the appeal in the first place.
• “Any person affected” by a decision may file a writ in Superior Court challenging the decision. “Any person affected” is defined as a party (see above) and “any person seeking to enforce the public’s right to safe and healthful working conditions…regardless of whether that person has a beneficial interest in the order or decision at issue.”

As we said, these are just the highlights of the bill. So far 33 entities, including the District Council of Iron Workers, have signed a letter to the author, Senator Mark DeSaulnier (D – Walnut Creek), opposing it. We will be commenting further on the bill’s provisions as it moves through the Legislature.

Still interested in doing business in California? You can express your feelings about SB 829 to Senator DeSaulnier here: senator.desaulnier@sen.ca.gov

One OSHA, one seamless entity in federal and state-plan jurisdictions from Maine to Arizona, speaking with one voice when defining hazards and enforcing regulations. That was the dream the Obama Administration’s new OSHA team announced at last year’s meeting of the American Bar Association’s OSHA Committee in San Diego.

How times have changed. At this year’s OSHA Committee meeting in New Orleans (we OSHA lawyers do pick the best spots to meet!), Deputy Assistant Secretary of Labor – OSHA Jason Barab agreed that the federal offices speak with multiple voices when interpreting and enforcing the federal regulations. And those unruly state-plan states are even harder to manage. That’s the nature of agencies and people dispersed across a continent, even in the face of determined efforts to govern from the top down.

Here in California, we have never known uniformity between Cal/OSHA’s district offices, and have given up hoping for it. Employers with operations in more than one district, or in different states, should not expect to be treated the same wherever they go. One of our clients recently spoke in exasperation of the cooperative attitude and efficiency he found in one district office, and the hostility and foot-dragging he experienced in another just ten miles away.

Cal/OSHA’s administration often seems like the government of Afghanistan, with a head of state articulating ideals which may – or may not – be followed in the countryside as warlords from San Diego to Santa Rosa run their districts as they believe districts should be run, and inspectors enforce safety orders as they believe the Standards Board should have written them. The results often are unpredictable, which keep lawyers like us leery of offering our clients confident predictions of how regulations will be interpreted and how directives in the Policies and Procedures Manual will be applied, if they are applied at all.

So until the lion lies down with the lamb, employers will have to do what they believe is right and live with uncertainty. Employers would also be well advised to get to know the district managers in each area where they do business, to establish a foundation of goodwill before an incident puts them on Cal/OSHA’s radar screen. This may – or may not – help in your dealings with the Division, but at the very least, you will be known for more than the incident which brings an inspector to your door.

The Queen is … well, not dead, but deposed. Long live the King!

What a turn-around! From expired Member to Chair in less than a week. Governor Jerry Brown’s decision to elevate Carter was not a surprise – you can’t be vilified by both Cal/OSHA and the unions and expect to remain Queen of the hill – but the interim between Carter being termed out and his new appointment did allow for some gossip and wagering in the Division and the “regulated community.”

Carter was the logical choice. Having already served a term on the Board he will bring continuity to the transition. And his experience as a former Chief of DOSH will serve him well as he leads the Board as overseers of DOSH’s actions.

Now the question is what changes Carter will make, and how soon. We do not expect anything dramatic. For the most part his vote has been with the majority, but his union credentials will cause his actions, both in decisions and administration of the Board’s work, to be closely watched by employers.

We wish him well. And we’ll be watching.

“If our only goal is to gather ‘employer admissions against interest’, rather than to thoughtfully consider an employer’s response, this all will fail. That will be regrettable.”
— Anonymous CSHO

Indeed it would. But that seems to be where we are headed. Achieving Cal/OSHA Chief Len Welsh’s grand vision of fewer, more defensible, “serious” citations through AB 2774, and especially through the use of the new 1BY form, will depend in great part on the integrity of Welsh’s inspectors. Only when employers and their advisors are confident that their explanations will be thoughtfully considered, and not used as a card in a game of “gotcha,” will they be likely to offer candid – or any – responses.

And so it was with a decided loss of confidence in Cal/OSHA’s integrity that we read this morning a 1BY form offered by an inspector to an employer… with the employer’s section already filled. The employer’s risk manager was asked to sign the form and return it. Just a formality.

But even a cursory reading of the suggested responses revealed that this employer would be admitting things about an accident which they never would admit, and accepting a level of responsibility which they never would accept. If this is the way Cal/OSHA intends to accomplish its “dialogue” with employers, the effort will be still-born. There will be no basis for building confidence and cooperation between Cal/OSHA and California’s employers, and the dream will die a quick death.

We know Len Welsh well enough to believe that this is not the way he wants the 1BY to be used. We cannot say the same (obviously) for all of his inspectors and District Managers. Until they are all on the same page, California employers must be on guard that their cooperation not foster treachery.

We have already warned employers that their decision to complete the 1BY or not requires a thorough investigation, confidence in the accuracy of their investigation’s findings, and a wary eye to the possible ways the 1BY might be used for other purposes in other forums. The recent $11.7M verdict against a general contractor in the Marin County Superior Court case of David Travis v. Bison Builders, Inc. was achieved without help from a 1BY form, but that horror story only highlights the risks run by employers who rush head-long into a poorly thought-out response.

In Bison Builders, the general contractor was sued by a subcontractor’s employee for causing him severe permanent injuries by not following through on promises made in its Illness and Injury Prevention Program, and for not heeding complaints of a hazard by workers. If this result could be achieved without the aid of a poorly written 1BY, imagine the result when it can.