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New California Law Allows Agents' Presumption of a Serious Workplace Safety Violation

  • January 25, 2011

A new California law makes it easier for the California Division of Occupational Safety and Health (“Cal/OSHA”) to classify workplace safety violations as “serious” for purposes of issuing citations and proposed penalties to employers.  Assembly Bill 2774, signed by Governor Arnold Schwarzenegger in September 2010, broadens the definition of “serious violation” and establishes specific procedures for Cal/OSHA to create a rebuttable presumption that a “serious violation” exists at a worksite.  According to Cal/OSHA, the law will “help strengthen the Cal/OSHA program, improve enforcement efforts and better protect California’s workers.”

An employer who receives a citation for a "serious violation" may be assessed up to $25,000 in civil penalties.

Rebuttable Presumption

Under the new law, Cal/OSHA can create a rebuttable presumption that a “serious violation” exists if it demonstrates that “there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation.”  This “realistic possibility” standard is looser than the California Labor Code’s previous requirement of a “substantial probability” of death or serious physical harm. 

“Serious Physical Harm”

AB 2774 also expands the definition of “serious physical harm” to mean:

any injury or illness, specific or cumulative, occurring in the place of employment or in connection with any employment, that results in any of the following: 

1) Inpatient hospitalization for purposes other than medical observation.
2) The loss of any member of the body.
3) Any serious degree of permanent disfigurement.
4) Impairment sufficient to cause a part of the body or the function of an organ to become permanently and significantly reduced in efficiency on or off the job….

Cal/OSHA Procedure

The new law establishes specific procedures for Cal/OSHA to follow. Before issuing a citation alleging that a particular violation is serious, Cal/OSHA inspectors are directed to consider the following information:

  • The training employees and supervisors have had related to preventing employee exposure to the hazard or similar hazards;
  • Employer procedures for uncovering and controlling the hazard or similar hazards;
  • Supervision of exposed or potentially exposed employees;
  • Employer procedures for communicating with employees regarding its health and safety rules; and
  • Any information the employer provides regarding the circumstances surrounding the alleged violative conditions, why the employer believes a serious violation does not exist, and why the employer’s actions were reasonable.

Under the law, Cal/OSHA may accomplish the above by presenting a form to the employer (at least 15 days before issuing a serious violation citation) essentially describing the alleged serious violation and requesting a response from the employer.

To Fight the “Serious” Violation Presumption

If Cal/OSHA establishes a presumably serious violation, the employer may rebut the presumption by presenting evidence that it “did not know and could not, with the exercise of reasonable diligence, have known of the presence of the violation.” This burden can be met by proving (1) that the employer took all steps a reasonable employer would take under the same circumstances, and (2) the employer took effective action to eliminate employee exposure to the hazard created by the violation as soon as the hazard was discovered.

Implications for Employers

California employers should note the new law and the specific procedures established for Cal/OSHA inspectors underscores the need for strong training programs for employees and supervisors, systems to “find and fix” hazards, and understanding industry best practices to address hazards. Jackson Lewis attorneys are available to assist employers in understanding the new law and ensuring their safety and health programs and procedures are fully compliant with Cal/OSHA rules and regulations.

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