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The Drought is Over for Cal/OSHA

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. Read further…

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.

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.

“Twenty Years of Dilapidation”

“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 selection now has to start all over.

The second is that in order to increase the staffing levels in the Process Safety Management unit, Cal/OSHA has had to recruit directly from colleges and universities. That means that half of the unit’s inspectors, who are charged with enforcing Title 8 CCR section 5189 – probably Title 8’s most technical regulation – will have absolutely no experience in the complexities of refinery and chemical plant operations. 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.

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.