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New Cal/OSHA Appeals Board Rules Effective July 1, 2013

The Cal/OSHA Appeals Board has adopted new procedural rules which will take effect on July 1st. Here are some highlights:

Expedited Proceedings: The following is copied from a letter received from the Board: “When each Appeal Form reaches the Board, we review the contents to see if the appeal qualifies for Expedited Proceeding, that is: the citation appealed is classified as Serious, Repeat Serious, Willful Serious, Willful, Willful Repeat, Failure to Abate, and abatement has been appealed or has not occurred.  If we cannot determine from the Appeal Form and citation whether abatement has occurred, we will contact the appropriate DOSH District Manager via email or telephone to ascertain abatement status.  Those cases in which abatement has not been accomplished and which meet the other conditions will continue into the Expedited Proceeding process.”

Those cases diverted to the EP program will be set for a pre-hearing conference within 30 days of the filing of the appeal. A hearing date will be set within 60 days following the pre-hearing, and will be calendared for a single day. That hearing will be on ALL issues, not just abatement. In cases with any degree of complexity employers and their representatives will have to scramble to be prepared.

Party Status: The rules on who, besides Cal/OSHA and the employer, may become parties to an appeal have been clarified to state that as many “affected employees” and their “authorized representatives” as wish to, may be granted party status in an appeal. As parties, each will be able to file pleadings and motions, conduct discovery, participate in conferences – including settlement conferences – and hearings. It remains to be seen whether this change will serve to “do justice” or create chaos.

In the case of the death of an “affected employee,” the list of persons qualifying as parties has been expanded to include, in descending order, the employee’s surviving spouse, domestic partner, issue (children to you laypeople out there), dependents, or parent.

The good news is that these parties have not been granted specific power to sabotage settlement reached between employers and Cal/OSHA. Not yet…

Amendments to Pleadings: Under the old rule, a motion to amend a citation or appeal would be denied if the party opposing it demonstrated prejudice. The fireworks usually occurred on the morning of, or in the days before, the hearing when the Division would seek a last-minute amendment to alter a citation and the employer and/or counsel would object that they had put much effort into preparing to defend one set of issues which would become irrelevant if the amendment was allowed.

The rule now will be that an effective cry of prejudice to a motion to amend a citation or appeal, which is made within 20 days of the hearing and which based on the same set of facts as the original, will be granted on a showing of good cause why the motion could not have been made earlier. If the opposing party can demonstrate prejudice, the judge is empowered to order a continuance of the hearing or other relief sufficient to level the playing field.

Note that this change does not address motions made after hearing to conform citations to proof. This is a good thing, because it continues to be our experience that Cal/OSHA too frequently cites regulations as they wish they’d been written, not as they are.

 

Heat Illness Enforcement in High Gear

With the second hot week of the summer season upon us, Cal/OSHA today held a conference call to go over their enforcement of the heat illness regulation for outdoor work, Title 8 California Code of Regulations section 3395. Some timely information came out of that hour-long presentation.

Last year Cal/OSHA conducted 3,839 heat illness inspections. The most cited violation arising from those inspections was for a failure to have any written heat illness prevention program (HIPP), or having one which did not contain all of the elements required by the regulation. The second most frequent citation was for the employer’s failure to train employees and supervisors adequately. Third was for failing to have sufficient water nearby the employees.

As to  water, Cal/OSHA’s Bill Krycia reminded listeners that employers must provide no less than one quart of water per employee per hour per shift. He also offered some guidance on how close Cal/OSHA wants the water to be to the employees: As close as practical, no farther than a quarter mile or a five minute walk away. That’s not in the regulation, but it looks as if that’s what Cal/OSHA will be enforcing.

A question was asked about employees who provide their own drinking cups. Employers are not restricted to providing one-time cups (and our forests thank you). Whether the employee’s cup or bottle is provided by the employer or the employee, Cal/OSHA will be satisfied so long as the cup or bottle can be identified as his or hers alone. This can be done by writing the user’s name on the bottle with a Sharpie.

Bill also went over the regulation’s provisions for shade: Shade must be provided when the temperature is over  85 deg. F., or when an employee asks for it. The shaded area must be large enough to accommodate 25% of the employees.

The regulation’s high heat provisions  kick in when the temperature hits 95 deg. F. This section only applies to five industries, but they are the biggies in outdoor employment: Agriculture, Construction, Landscaping, Oil and Gas Extraction, and Transportation of Ag or construction or other heavy materials. These employers’s additional obligations include effective means of communication, frequent observation of employees for heat illness and frequent reminders to drink water.

The high heat rules also call for “close supervision” of new workers during their first 14 days on the job, with a few exceptions. The regulation is unclear on what supervision is needed which goes beyond the level of supervision afforded longer term employees. It also is unclear whether the 14 days supervision period starts on the first day of hire regardless of the temperature, or  on the first high heat day.

If you have any questions or if you meet a Cal/OSHA inspector who seems to be out of step with his or her managers, send us an e-mail at info@walterprincelaw.com .

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The First Responder’s Dilemma Part II

In the last episode of the First Responder’s Dilemma we learned that Cal/OSHA is now penalizing first responders as “employers” for failure to report serious injures encountered during accident response calls as required by Title 8 CCR section 342(b). We left you wondering if first responders have a duty to follow an injury to determine its “serious” nature. (see Title 8 CCR section 330(h))

A case, specifically on that issue, has had us pretty worried.  It involves the Orange County Fire Authority (yes, again) and an injured teacher.  In this case, the OCFA responded to a call involving a teacher who had fallen down while redirecting a student.  There was some swelling of the ankle and the first responder opined that the teacher had sustained either a sprain or fracture.  The teacher refused intravenous pain medication. The OCFA provided ice, immobilization and then transferred care to a private ambulance service for transportation to the hospital.

End of story?  No.  The teacher did sustain an ankle fracture, opted for surgery instead of long term immobilization and was hospitalized for more than 24 hours.  And, the OCFA was cited for failure to report the event.  The Cal/OSHA Administrative Law Judge (ALJ) upheld the citation based upon conclusions that the teacher had sustained a serious injury and that the injury was not reported by the OCFA.  The issues of OCFA’s knowledge of or duty to inquire as to the nature of the injury following the care they provided were not addressed.

The Occupational Safety and Health Appeals Board (OSHAB) took the matter under review and, on April 9, 2013, issued a Decision After Reconsideration reversing the ALJ’s Decision. The OSHAB wrote that it does recognize the first responders’ serious injury report as part of a dual reporting regime but does not read the statute as requiring first responders to further investigate events to which they respond and can’t reasonably conclude are “serious” at the time of the call.

There is sure to be further discussion (and litigation) as to the “reasonable conclusions” reached in future cases.  For now, here is what we have to work with:

1. First responders must exercise their best judgement and expertise in determining whether an injury or illness is serious;

2. First responders should be conservative and error toward reporting;

3. The evaluation need only be based upon facts known at the time aid is rendered and during the time the injured person is in the custody and care of the first responder; and,

4. There is no obligation to investigate events or information not evident at the time of the response.

 

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The First Responder’s Dilemma: Part I:

The Orange County Fire Authority has had a bad couple of years, OSHA-wise.  Since March 15, 2011, the agency has been cited for at least six alleged violations of the reporting rule found at Title 8 Code of California Regulations section 342(b).  This is the public agency counterpart to the employer’s duty found in section 342(a) to report serious injuries and illnesses to Cal/OSHA. It requires police and fire agencies to report any “accident” which results in a serious injury, illness or death to an employee.

The Cal/OSHA Appeals Board, in a January 3, 2013 decision, concluded that the Orange County Fire Authority is an “employer” subject to penalty for failure to comply with the reporting requirement.  The Board further held that a heart attack qualifies as an “accident” if it happens to an employee while at work. The Board reached this conclusion by referring to the definition of an “accident” as “an event or condition occurring by chance or arising from unknown or remote causes”.  They concluded that a myocardial infarction is a random event which cannot be predicted, and thus qualifies as an accident. Would my cardiologist agree? No more heart healthy diet required?!  Please pass the Fritos.

Since that decision, a Cal/OSHA judge has upheld the penalties (repeat penalties no less) against the agency in two other cases.  At least two additional appeals are still making their way through the system.

Yes, the Orange County Fire Authority is having a rough time.  The implications of these cases may mean a rough ride for other public agencies as well.  These cases, taken together, suggest that fire and police personnel must add these questions to their emergency response protocols and make each decision correctly or face citation by the Division.

Is this an “accident,” as the Board would define one?

Is this situation “occupational”?

Is the injury or illness “serious” as defined in Title 8, CCR section 330(h)?

One more thing: Do first responders have a duty to follow up with the hospital, as employers do, to determine if the “accident” has become “serious” even if it does not seem so at the scene?  Stay tuned for the First Responder’s Dilemma: Part II

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Closing Conferences: The End of the Beginning

When a Cal/OSHA or Fed/OSHA inspector sets a date for a closing conference it signals that the investigation has been completed and the content of the citations has been decided. In the conference, which usually takes place by telephone, the inspector will tell you what Cal/OSHA or Fed/OSHA is going to do. Specifically, you will be told which regulations they have concluded were violated, what classifications will be assigned to the citations, and how much the proposed penalty for each will be.

You will be advised of your rights to seek an informal conference with the District Manager (Area Director if Fed/OSHA), and to appeal the citations. The inspector will conclude the conference with an admonition that it is against the law to punish any employee for speaking to OSHA inspectors.

This is not a dialogue. While the inspector may be interested in hearing what you have to say, it is highly unlikely that anything you say will change the result. For example, the inspector’s timeframe is limited to the event leading to the citations, not what you have done since. Think of it this way: When you appear to fight a traffic ticket the judge will not be much impressed by the fact that you haven’t run any red lights since being stopped.

When do you get to have your say? When you go to an informal conference or appeal the citations. Of that, more in a while.

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Oooops.

Well,  we’ve made our first error of the year. Probably not the last.

Our prediction that Dr. Michaels will leave Fed/OSHA was premature. According to several sources, he has signed on to stay to the end of Obama’s term, as has his second-in-command Jordan Barab. There seems, then, no hope for any change in OSHA’s campaign against employers.

 

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1BY Letters: The Death of Dialogue

Readers of this blog know that we disapprove of Cal/OSHA’s mis-use of Citation Notice letters, known by their form number as 1BY letters. Our advice to California employers in the past has been to be very careful how they respond, if they respond at all. Our latest advice is more simple: Do not respond at all. Here’s why:

In 2010 Assembly Bill 2774 changed a lot of things about the way Cal/OSHA works. Most of the changes were aimed a making it easier for Cal/OSHA to successfdully defend their citations at the Appeals Board. But the 1BY letter was supposed to be different.

The brainchild of then-Cal/OSHA Chief Len Welsh, the 1BY letter was intended to foster early and (more) open dialogue between employers and Cal/OSHA before  citations classified as serious are issued. Welsh points out, quite rightly, that once a citation is issued it is posted on Fed/OSHA’s Establishment Search page for all to see… forever. A sort of industrial FaceBook of employer embarassments.

If the employer has a good reason why a citation should not be issued, or issued with a classification less than Serious, why not get that done before an appeal has to be filed? The concept of the 1BY was received positively by most on the employer’s side, who saw it as a form of early settlement negotiation.

Cal/OSHA’s first version of the 1BY letter was straight-forward: The letter identified the specific regulation thought to have been violated, and included the alleged violation description (AVD). It also had a box to check to alert the employer that Cal/OSHA was considering issuing the citation as Willful Serious.

Well, soon after the 1BY was born Welsh left Cal/OSHA and  the agency’s attitude changed from proud parent to mean step-parent. General Counsel Amy Martin announced on a videocast sponsored by the Cal-OSHA Reporter that the employer’s statements on the 1BY could be used as evidence at hearing, if it seemed to contain admissions against interest. Certainly, she declared, any changes in the employer’s position between the reply and the trial would be pointed to as evidence of untrustworthiness.

Worse, there seemed to be no uniform approach to the use of the 1BY in Cal/OSHA’s district offices. Some treated the employer’s replies seriously. But other district managers and inspectors have told our clients not to bother, they never read the responses. One employer’s response has even been used to justify increasing classification from Serious to Willful Serious.

Which brings us to our most recent disappointment: The latest version of the 1BY includes only the AVD language. Gone is any clue as to which regulation will be cited. Gone also is the head’s up that the citation might be a Willful. The reason? Cal/OSHA has discovered that the Labor Code doesn’t require them to provide either.

So, the dream of dialogue is now fully dead and the 1BY is more than ever a trap for the unwary. Don’t play that game.

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From Chuckie the Doll to Happy the Dwarf In One Easy Lesson

A client, call him Hap, called this afternoon with a story, a nightmare really.  Hap had hired a contractor to do some work on his house.  The guy had worked for Hap before and Hap had confirmed that he was licensed to perform the work.  During this project, the worker fell off of the roof and was seriously injured.  And, this time, the contractor’s license was not in effect. And his workers’ compensation insurance policy had expired.

Under Califonia law, Hap is now considered the worker’s “employer” and responsible for providing coverage for the injury.  The good news: Hap’s homeowner’s policy kicked in to provide comp coverage. The bad news: The worker also filed a claim at the Workers’ Compensation Appeals Board for serious and willful misconduct, known as “S&W”.  If proven, this claim would entitle the worker with a “bonus” fifty percent increase in the normally allowed worker’s compensation benefits (medical, temporary disability and permanent disability. (Click here to see our article onon S&W Liability.)

After an agonizing discussion about the potential liability and my rather ineffective caution to wait until we know more about the claim before losing sleep, Hap called the worker to ask why he was pursuing the claim.

Five minutes later my phone rang again.  It was the worker’s attorney.  The worker had called her to say he did not fully understand the nature of the S&W claim when they first talked about it. He has instructed her to dismiss it.

The call was further confirmation for my long-standing suspicion that many employees do not fully understand what they are accusing their supervisor of when the S&W claim is filed.

Not every case has a happy ending but it sure feels like a Disney movie in here today.  In fact, I think it is time to wrap it up and go home for a glass of wine.  First, I have to review our insurance policies.

The take-away:

1. Check your insurance coverages before hiring a contractor to do work on your house.

2. Check the contractor’s status at the Contractors State License Board (CSLB).

3. Ask for confirmation of the contractor’s workers’ comp coverage. On very large jobs ask to added as a “named additional insured” on his or her liability policy as well.

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It’s Time to Post Your OSHA 300A again

 

Whether you work under Fed/OSHA or Cal/OSHA, t’s that time of year again: February 1, our friend Ed Kempkey at Kempkey Insurance Services in Napa reminds us, is the “drop dead” date for you to tabulate your annual OSHA Log Summary (OSHA Form 300A) and post it in a common area wherever notices to your employees are usually posted.

The summary must list the total number of job-related injuries and illnesses that occurred in calendar year 2012 and logged on the OSHA 300 Form. The Summary must remain posted until April 30, 2013.

Before your 300A form is complete, it needs to be signed by a “company executive” to certify that he or she has examined the form and reasonably believes, based on his or her knowledge of the process by which the information was recorded, that the annual summary is correct and complete.

Who does OSHA consider a company executive?

  • If the company is a sole proprietorship or partnership, one of the owners.
  • If it is a corporation, an officer (CEO, CFO, president, VP – you get the picture)
  • If the workplace is a branch of a larger entity, the highest ranking company official working there, or…
  • The immediate supervisor of the highest ranking company official working there.

If you need additional assistance, have questions about recordability, or would like to compare your loss performance trends against national benchmarking data against your SIC or NAICS code, contact us at 707-431-7900 or info@walterprincelaw.com.

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Happy New Year!

With the San Jose State Spartans reaching the Top 25 for the first time in history and winning their first bowl game in forever, life is good! We hope your year is starting well too!

“Most Influential”!

2012 ended on a high note when Fred was named by Cal-OSHA Reporter to its list of the people “Most Influential” in Cal/OSHA’s world. He was described as a “vocal critic” of Cal/OSHA, but prefers to think of himself as a voice of reason speaking for the “regulated community.”

Fred is honored to be in company with so many of the friends and “frenimies” he has come to know and respect over the past (few) decades.

To see Fred’s viewpoint on undocumented workers, injury recording and reporting, the effects of AB 2774 and the sea change at Cal/OSHA, and our view of our role in OSHA appeals, go to: Fred’s Interview

The Firm Expands!

2013 starts for Walter & Prince with another first as well: A new office in Los Angeles to serve our Southern California clients better. Located at 10904 Wilshire Boulevard, just outside Westwood Village, it is close by the 405 corridor and the San Fernando and San Gabriel valleys, and not so far from Orange County.

So, what’s in store for the world of OSHA in 2013?

The news is that there is no news. With the election changing nothing at the federal level except to free the executive branch from another election fight, OSHA will continue business as usual. We foresee no changes in policy at the Department of Labor when Secretary Hilda Solis leaves. And although Dr. Michaels also will be leaving this year as Chief of Fed/OSHA, his faithful sidekick, Jordan Barab, will not.

With the freedom only felt by political appointees not pressured by re-election worries, and abetted by tenured bureaucrats, Barab and Dr. Michaels’ replacement can be expected to keep putting the screws to employers. Count on continued heightened enforcement.

Here in California that means keeping the pressure on Cal/OSHA to write more serious, repeat and willful citations. Fed/OSHA’s most recent EFAME findings are not new: The main finding is that California continues to lag the other state-plan states in writing serious citations by some 20%. This, is despite replacing the old Cal/OSHA Chief, who was intent on finding common ground with the “regulated community,” with a new one who has a very broad definition of “bad employer,” and shows every intention of following Fed/OSHA’s bidding by destroying our VPP Construction program.