The year 2011 will bring more “serious” workplace health and safety citations—and with them, higher fines—to California’s employers, as a new law takes effect that redefines such violations.
The new law, which took effect Jan. 1, establishes a definition of “serious” violations that is in line with federal Occupational Safety and Health Administration standards, which have been interpreted more broadly than California’s standard.
What ‘Serious’ Means
California is one of 27 states and territories with its own state-run occupational health and safety agency. These programs are required to set standards that are at least equal to those of federal OSHA.
However, the nation’s most populous state has the country’s lowest rate of serious OSH citations—just 19%, OSHA says, compared with 77% for federal OSHA and 43% for all state-run plans.
The reason has to do with California’s Occupational Safety and Health Appeals Board (OSHAB).
Like federal OSHA, California defines a “serious” violation as one that creates “a substantial probability that death or serious physical harm could result.”
However, OSHAB has interpreted that to require that the state Division of Occupational Safety and Health show “a better-than-even chance that the violation will result in death or serious injury,” notes safety and compliance site safety.blr.com.
Critics, including many in Cal/OSHA, say that standard has created a nearly impossible burden of proof.
Deaths and General Violations
The result has been a tendency by the state to classify many serious violations—even some involving fatalities—as general violations, the site reports. A serious violation carries a maximum fine of $25,000; a general violation has a maximum $7,000 fine.
In June 2009, 47 Cal/OSHA staff members, including district managers, sent an open letter to OSHAB, contending that its policies were hampering the state’s ability to hold employers accountable for serious violations. Federal OSHA then initiated a special study of California’s program and appeals process.
In January 2010, federal OSHA expressed its concern in a letter to the chairman of the appeals board, saying that OSHAB’s interpretation of serious violations threatened to put Cal/OSHA out of compliance with federal OSHA.
On Sept. 30, then-Gov. Schwarzenegger signed the new law, Assembly Bill 2774. Shortly before the new law was signed, federal OSHA issued a scathing evaluation of certain parts of the program, including OSHAB’s handling of “serious violations.”
Supporters of the new law included labor unions, California Applicants’ Attorneys Association and the California Rural Legal Assistance Foundation.