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The Drought is Over for Cal/OSHA

Since the recession Cal/OSHA has suffered a brain drain, through retirements and other causes. Those vacated positions went unfilled, also for multiple reasons. Now, that tide is turning. The State’s new-found wealth is being shared with Cal/OSHA, to the tune of $5.7 M, according to a press release issued jointly by DIR Director Christine Baker and Cal/OSHA Chief Juliann Sum.

This year’s budget will allow Cal/OSHA to fill 27 previously unfunded positions in Enforcement and Consultation. It also adds a whopping 15 new positions to the Process Safety Management Unit. You may recall that following the fire at Chevron’s Richmond refinery the PSM Unit came under attack from a host of critics for not conducting enough inspections, and for not digging deep enough in the inspections it did conduct.

We can only hope that along with its increased troop strength the Division re-shapes its internal culture to focus on true safety issues. This is the time to make good on all those promises to play “gotcha!” no longer.

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Correction: “Twenty Years of Dilapidation”

In our May 14, 2014 post on changes at the Division we made the mistake of assuming what we read in the San Francisco Chronicle was true: That to beef up Cal/OSHA’s Process Safety Management (PSM) units, the Division had to hire a lot of recent college grads severely inexperienced in life outside academia.

Not so, says PSM’s Clyde Trombettas. His new hires are from a range of backgrounds and will be up to speed quickly. We have updated that post and apologize for failing to fact check the Chron.

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Reporting Workplace Injuries and Illnesses to Cal/OSHA

Employers have to report workplace accidents and injuries to OSHA, whether Cal/OSHA, Fed/OSHA or another state’s OSHA, within 8 hours of knowing that an injury or illness is “serious.” Let’s look at what that means.

In California, under Title 8, California Code of Regulations section 342(a), an injury or illness is “serious” if it results in death, “loss of a member of the body,” serious permanent disfigurement, or hospitalization for over 24 hours for “other than observation.” Below we discuss these categories, and how long after an event the employer’s obligation to report lasts.

Death is pretty obvious.

Not so “loss of a member of the body.” (Who dreams up these categories?) Since we have been doing Cal/OSHA defense work, this has been interpreted to mean loss of bone and has not included loss of flesh, cartilage (e.g., noses, fingernails) or enamel (e.g. teeth). So, in the most common scenario where this category comes into play, an accident which results in the loss of flesh and the nail from the tip of a finger is not reportable. But if there is ANY loss of bone, whether in the accident or during a surgical repair, the injury must be reported.

This definition was tested in a case we defended a few years ago, where a worker suffered a grisly laceration to a finger, leaving the distal portion hanging by a single tendon. A brilliant surgeon was able to repair the finger the same day so that there was no loss of bone or, after healing, flesh. And range of motion was totally restored. In that case the Administrative Law Judge found that no report was required and Cal/OSHA did not seek reconsideration of his decision. However, you should be aware that since this definition is not enshrined in Title 8, an inspector or district manager may take a different view.

“Serious permanent disfigurement” has generated few Appeals Board decisions. It is generally understood to mean more than cosmetic scarring. A significant loss of range of motion or grip strength will qualify for this category. For the lawyers reading this, think of the early common law definition of “mayhem:” An injury which renders the victim less effective in combat. The real question here is when does an employer have enough information to answer the question.

Cases dealing with hospitalization for over 24 hours for “other than observation” – as opposed to treatment – have found no reporting required when the employee is held overnight to monitor for complications following head injuries or the like. In cases we have seen the administration of OTC (“over the counter”) drugs like Advil or Tylenol did not qualify as treatment. Nor does continuing hospitalization for a guy with two broken arms until family members can arrive to help him at home.

So, how long does a California employer remain at risk for a reporting violation? Answer: It can be for as long as the employee lives.

Take the following case ripped from the Cal/OSHA Appeals Board’s decisions: An employee suffers a back injury, goes out on workers’ compensation and is treated on an out-patient basis with physical therapy and drugs. Reportable? No.

After six months, during which time the employee voluntarily terminates her employment, her doctor decides that only surgery would cure her. She is hospitalized and released after a few days. The employer’s HR staff is on the ball and updates the OSHA 300 log accordingly, but fails to realize that the injury now qualifies as “serious.” Reportable?

YES, said the Board. In its decision the Board held that the employer has a continuing duty to report injuries and illnesses whenever they slide into one of the categories of “serious.” They reached this decision with straight faces, despite acknowledging that the whole purpose of the rule is to allow Cal/OSHA to investigate for workplace hazards needing immediate abatement.

Bottom line: Few things are ever over, nor always logical, in the world of Cal/OSHA.

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“Twenty Years of Dilapidation”

That’s how Christine Baker, Director of Industrial Relations bluntly described Cal/OSHA’s current condition to a packed audience at the recent Safety Expo in Elk Grove. She has taken on the task of rehabilitating the Division and early results are encouraging.

To us, Baker’s most encouraging comment was that she is determined to make Cal/OSHA’s teams accountable for their actions. She wants inspectors to treat California’s employers less like criminals and more like clients, to act more like problem solvers and less like meter maids. Cal/OSHA’s energies could be directed toward the underground economy – finally! – using payroll data and inter-agency communications to better identify the state’s bad actors are.

The most visible evidence to date of Baker’s determination to change is the open attitude of Baker’s new Chief of Cal/OSHA, Juliann Sum. In Sum’s talk at Safety Expo she asked as many questions as she answered and was disarmingly frank about admitting what she didn’t know. She actually encouraged dialog and took notes about new information she received. Refreshing!

The obvious take-away is that Cal/OSHA’s new leadership is making an effort to change the culture of the Division, never an easy task. If successful, Cal/OSHA should be better staffed, more even-handed in its approach to employers and even humble where warranted. We applaud the effort, while recognizing the enormity of the challenge.

As to staffing, there are two developments of note. The first is that there will be a delay in promotions to District Manager. It seems that the promotion list created by the former Chief’s staff did not follow the rules and had to be tossed. The process of applying, testing, interviewing and selecting now has to start all over.

The second is that the Process Safety Management unit has gone on a hiring binge, which is good news for PSM auditing but bad news as these new hire will have a sttp learning curve.  This is not really a new condition, as in recent years we have seen industrial hygienists inspecting logging operations and machine guarding accidents where they had no clue how the regulations applied to what they were looking at.

All in all, we are gladdened by what we are seeing at Cal/OSHA. Time will tell if these changes take root and prove beneficial to workers, employers and Cal/OSHA itself.
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Here Comes the Sun da da da

Cal/OSHA launched its Heat Illness Prevention Program for the 2014 season this week. The goal of the program is to reduce cases of heat illness and to ensure compliance with California’s heat illness prevention standard, Title 8 California Code of Regulations section 3395. The launch brings questions about what exactly Cal/OSHA intends to enforce this season: The regulation as it is currently written? Or the regulation as Cal/OSHA proposes to change it?

According to the law, Cal/OSHA may only enforce Title 8 regulations as they are written. But, to be real, Cal/OSHA has a history of issuing citations based on how they wish the regulations had been written.

The list of proposed heat illness regulation changes will appear alarming to employers already working very hard to prevent heat illness and get some work done. From a compliance perspective, the most alarming change probably did not jump out at you. Here it is:

“Every employer shall establish, implement and maintain an effective Heat Injury and Illness Prevention Program”.

It sounds easy enough and the language is familiar; it comes from the IIPP section, Title 8 CCR section 3203.

However, it is Cal/OSHA’s golden ticket to citation in the event of any heat related illness – however unanticipated. This is true for a couple of reasons. The most obvious is that in the event of a heat related illness, Cal/OSHA will argue that obviously the employer’s program was not effective and / or adequately implemented.

Further, this language would give Cal/OSHA authority to issue citations to an employer for not following its own program (the implementation part), even for portions of the employer’s plan not mandated by 3395. This means that even if the employer is fully complaint with the written regulation, a citation could be issued if that employer did not following exactly provisions it added to its program with the intention of creating a workplace safer than even Cal/OSHA envisions. Well intentioned employers will suffer.

Don’t think good intentions will be punished? Here is an example:

An employer added acclimatization procedures to its written plan for new workers. Although its new employee (who reported recent experience in the field) was given the least strenuous job on the site, he suffered a heat related illness. Cal/OSHA issued a serious, accident-related citation to the employer for failing to provide the acclimatizing training called for in its written program, even though there is no (current) requirement in 3395 which describes how to acclimatize employees. Thus, Cal/OSHA sought to hang the employer on rope provided by the employer himself.

Although Cal/OSHA lost that case (despite an aggressive defense!), it continues to issue similar citations. And, Cal/OSHA is now moving to make future citations stick by amending the regulation.

Lessons here: Beware of seemingly benign language in a regulation. And, as with all written safety programs: Do what you say you are going to do.

Finally, we were going to provide you with a link to the proposed regulation, but cannot find one on Cal/OSHA’s website. If you wish to see the proposal, contact us and we’ll send you a copy.

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California: The Place Where Dreams Never Get Started

Elon Musk, a California resident, heir to Steve Jobs’ reputation as the smartest, boldest guy in Silicon Valley, and the driving force behind Tesla Motors, SolarCity and SpaceX, has announced plans to build the biggest manufacturing plant ever. He wants to spend up to $50 Billion and employ 6,500 workers to build batteries to power a more affordable version of the Tesla S, to be called Gen III. The ripple effects benefitting the economy in the lucky community where this plant is built will be enormous.

So, where do you suppose he wants to build this plant? He’s looking at Arizona and Nevada, where the legislatures are working overtime to get out of his way, New Mexico and Texas, where Governor Perry is personally negotiating for a deal.

But not California. We’re not even on his list. Here are some reasons why.

In 2013, Chief Executive Magazine ranked California the worst state to do business – for the 9th year in a row.

In January 2014, The Economist magazine reported that California suffered 254 “disinvestment events” in 2011. That means 254 California companies of 100 workers or more either moved out of state or expanded elsewhere rather than invest any more in our future.

And these numbers don’t count companies and entrepreneurs which, like Musk, took a look and decided to take a pass.

The magazine quoted one observer in Sacramento as saying that our state government’s attitude toward business in general, and manufacturing especially, is – and you can certainly include Cal/OSHA here – the phrase “FY” (we’re old enough not to want to spell it out for you) repeated nine times. iPhones, for example, are proudly “designed by Apple in California,” but they are made in China. Design is clean, employs bright, well-paid engineers and plays to the myth of Californian exceptionalism. Manufacturing, by comparison, is messy, has higher worker injury rates but pays working wages.

Considering the regulatory burdens we place on businesses – and in Musk’s case, the roadblocks traditional energy companies throw in the way of alternative energy start-ups – and you have a society which repels industry and is paying the price. Is it any wonder that our middle class is shrinking faster than the other states?

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Cal/OSHA’s Abuse of the 1BY Process Continues

We continue to recommend that employers say “No thanks” to the offer to participate in the pre-citation “interactive” process kicked off by an Intent to Issue Citation letter, known by its form number 1BY. But don’t take our word for it.

This e-mail was sent to Cal/OSHA  following the issuance of citations which were based in part on information volunteered in response to a 1BY letter. It is presented here verbatim, except for redaction of the names of the writer, the inspector and the employer, although we expect there was no need for that. We expect that this e-mail has been passed around Cal/OSHA and has generated much mirth.

<<Mr. [DELETED],

Well I hate to say it but my friends, CALOSHA friends and the lawyers were all absolutely right.  The1BY process is a self-incrimination process.  You took my words twisted them some and came out with two serious citations just like everyone told me would happen.  I am not sure anything will happen on Tuesday as I have now been burned by trying to work with you, the District Manager and Regional Manager…I can’t trust the lot of you because there was no trust to begin with on your side.  I was a friend of CALOSHA but now know I as the fool for believing.  Shame on me.  Everyone warned me, but I stood up for the process and now being burned, you could say the bridge has been burned for me as well.  I was a huge supporter of CALOSHA but now after going through this process with your Regional manager, District Manager and you, have made me an enemy and untrusting of you and the process.  Remember when you told me it would all be fine?

The 1BY is an incrimination process nothing more.  I should have retained a lawyer for the company and now more than every probably need one, because how do I trust you and your word?  [We have] worked and developed our program with CALOSHA and worked very hard to have an exemplary program.  The program we have worked and worked well but you found the only miniscule flaw and pounced on it.  Found one and made two citations, congratulations the three of you should be proud.

Funny last week many people wanted me to take the exams to join CALOSHA, there is no way I could work for an organization that talks out of both sides of its mouth, my integrity is too high for that.

[DELETED]>>

If anyone at Cal/OSHA should ever ask you why they are not trusted or respected by the “regulated community,” show them this letter.

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Never Let A Serious Crisis Go To Waste

So said Rahm Emanuel, Mayor of Chicago and former Chief of Staff to President Obama. It’s a bit of wisdom Cal/OSHA should take to heart these days.

Well, it may be a stretch to say Cal/OSHA is in a serious crisis, but it certainly is challenged. Every week seems to bring news of someone else leaving. And the talent is draining from every part of the organization – Enforcement, Research & Standards, Consultation, Legal, you name it. The reasons are multiple, but the reasons are not as important as the effect this exodus is having on Cal/OSHA.

The most obvious effect from our viewpoint is that many of those leaving had some experience in industry before they went to work for Cal/OSHA. They came to the job of enforcing Title 8 as a second career, bringing with them an understanding of the work methods, customs and practices, and best practices used in different industries, and how the regulations fit in. They could appreciate when an employer was doing a good job and recognize when one was shining an inspector on. They could explain what a seemingly ambiguous regulation means.

Unfortunately, for the most part these folks are being replaced by kids straight out of colleges and universities who have little “real world” experience. The results are predictable and frustrating for all concerned.

So here’s the opportunity hidden in this crisis: We know of employers in several industries – cabinetry, logging, sawmills, wineries, foundries, robotized warehouse operations, and heavy equipment fabrication to name a few – who would welcome the chance to work with Cal/OSHA’s new people, to familiarize them with their industries’ operations. All they would ask is that the Enforcement types be willing to check their guns at the door.

There are precedents for this sort of cooperation between Cal/OSHA and the “regulated community.” The roofing industry is one example. The collaboration with the Nisei Farmers’ League in heat illness training is another. Why not expand on that success?

Cal/OSHA, are you listening?

Cal/OSHA Chief Ellen Widess Resigns

The California Department of Industrial Relations announced today that Ellen Widess has resigned effective immediately from her position as Chief of the Division of Occupational Safety and Health. No specific reason was given for her resignation.

Widess, who became Chief in mid-April, 2011, served during a period of great stress.  During her tenure the number of experienced inspectors who left Cal/OSHA or sought reassignment significantly reduced the agency’s corporate memory.  Limitations on funding brought on by state budget constraints and the federal “sequestration” action reduced the agency’s ability to travel and to hire new inspectors, thus compounding the sense of an agency adrift.

At the same time Widess was seen by employers as fostering a divisive atmosphere in California’s safety and health community, seeking to punish “bad” employers while doing little to encourage good ones. A strong supporter of Fed/OSHA Chief Dr. David Michaels, Widess followed his lead in seeking changes to California’s VPP-Construction program which were intended to eliminate current members from the program and to discourage construction contractors from seeking VPP certification.

While the ramifications of Widess’s departure are still sinking in, we view the coming transition to a new Chief as a great opportunity to progress toward the goal of true respect and cooperation between the regulators and the regulated. As DIR Director Christine Baker recently told the AGC: “Our goal is to increase compliance with labor laws and not punish employers who want to abide by the law, so that honest businesses can thrive and profit in California.” We could not have said it better. To that end we offer some places to start:

  1. Return to using the citation notice letter (the Cal/OSHA 1BY) as it was intended to be used: As an invitation to dialog between employers and Cal/OSHA before citations are issued.
  2. Encourage that communication by announcing that the employer’s response to a 1BY letter will not be used against it either as justification for a reclassification of the citation or issuance of an additional citation, or as an admission against interest at hearing.
  3. Correct inspectors and DMs who do not review employer responses to 1BY letters in good faith.
  4. Encourage employers who “get it” by REALLY eliminating “gotcha” citations. There are plenty of companies former Chief John Howard referred to as “employers from Mars” who need citations.
  5. Say it publicly and to staff, say it often, and mean it: Inspectors have no quotas for written citations. Instead of assessing the value of an inspector’s work by its quantity, look to its quality.
  6. Free up Enforcement’s limited assets by having Consultation respond to non-serious complaint letters, with the power to refer employers to Enforcement if necessary.
  7. Allot resources more evenly between Enforcement and Consultation so that both can do their jobs more effectively.
  8. Use those freed-up Enforcement assets to go after the underground economy, which hurts both the State and employers who play by the rules.
  9. Change the rule that employers cannot avail themselves of Consultation’s services to seek advice on abatement while a citation is pending.
  10. Take advantage of our employers’ knowledge to educate inspectors before unleashing them to write uninformed citations.
  11. Reaffirm the stated goal of the VPP program that companies which achieve VPP status will be rewarded by being seen by Cal/OSHA as partners working together towards a safer California.
  12. Encourage the use of experimental variances where new and potentially innovative products and processes become available.

That’s for starters. Then we can talk about more structural changes.

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Defining the Great Outdoors

What does “outdoors” mean?  As the guardian of a new puppy, the definition is very clear to me, if not yet to her.

The Division does not see it so clearly.  In 2007, it cited AC Transit for violations of the heat illness prevention regulation (Title 8 CCR 3395).  Specifically, the Division alleged that the public transportation agency failed to provide adequate drinking water and shade for bus drivers while driving their routes.

In reaching the conclusion to cite AC Transit under the heat illness regulation, the Division concluded that the inside of a non-air-conditioned transit bus qualifies among “outdoor places of employment”.  Confused?  So are we.  And, apparently, so was the Division.  No less that three justifications for this conclusion were provided by the Division during the course of this case.

First, the citing inspector used the criteria that the Division provided inspectors during their training: If a workplace has no plumbed water, no shade to cool off and is such that emergency response would be difficult, it is “outdoors.”

Second, an expert witness testifying for the Division stated that, “technically,” she would classify drivers as working outdoors “if they ever had to leave the vehicle, you know, to assist someone coming in or whatever.”

A third explanation was offered by the Division’s counsel who, in the closing brief, argued that all space “outside a building” is outdoors for purposes of the regulation.

All of these definitions were rejected by the Board’s administrative law judge who concluded that the heat illness regulation does not apply to busses.  The Division then petitioned the Board for reconsideration.

The Board accepted the challenge of answering the question: What is “outdoors”?  The Board rejected all of the Division’s views. And it specifically called the Division out on it’s edited version of Webster’s Online’s definition.  The Division quoted Webster’s as defining “outdoors” as “outside a building,” leaving out the second half of the full entry: “outside a building: in or into the open air.”

After five and a half years of litigation (from citation to Decision After Reconsideration), the question is finally answered: The interior of a bus is not “outdoors.”  At least for my puppy’s purposes, could there be any other conclusion?

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