California Workplace Safety Compliance Outlook 2017: New Cal/OSHA Developments and Legal Snares to Avoid

Transcription

1 California Workplace Safety Compliance Outlook 2017: New Cal/OSHA Developments and Legal Snares to Avoid Presented by: Andrew Sommer, Esq. Partner Conn Maciel Carey LLP Tuesday, January 24, :30 p.m. to 3:00 p.m. Eastern 12:30 p.m. to 2:00 p.m. Central 10:30 a.m. to 12:00 p.m. Pacific or For On-Demand purchasing information, contact customer service at: or BLR and HR Hero Business & Legal Resources and HR Hero. All rights reserved. These materials may not be reproduced in part or in whole by any process without written permission. This webinar qualifies for Recertification Points. Holders of CSP and related BCSP certificates may earn 0.15 Recertification Points for attending this webinar. Other certificate holders qualify for continuing education points according to their certifying agency guidelines.

2 California Workplace Safety Compliance Outlook 2017: New Cal/OSHA Developments and Legal Snares to Avoid Presented by: Andrew Sommer, Esq. Partner Conn Maciel Carey LLP January 24, 2017 Key Cal/OSHA Recent Developments: New repeat violation rule AGENDA New workplace violence rule Development of heat illness prevention standards for indoor workplaces Potential penalty increases on the horizon 2

3 AGENDA (cont d) Legal Pitfalls for California Employers: Cal/OSHA Notice of Intent to Issue a Serious Citation (the 1BY Process) Cal/OSHA Serious Injury & Fatality Reporting 3 Cal/OSHA s Evolving Repeat Violation Rule

4 Cal/OSHA on Repeat Violations Former Cal/OSHA Rule for Repeat Violations: If employer has fixed establishments (e.g., factories, terminals, stores ), repeat violations are limited to violations at the same cited establishment Employer engaged in businesses having no fixed establishments (e.g., construction, painting, excavation ), repeat violations are based on prior violations cited within the same Region of the Division 5 Former Cal/OSHA Rule on Repeat Violations 3-year lookback window Same violation committed w/in 3 years of prior violation Caveat, 5-year lookback for any violation of the State Field Sanitation Standards (field workers) Starts from date first citation is final, not date of violation Max penalty per Repeat = $70,000 1st repeat = multiplied by 2 2nd repeat = multiplied by 4 3rd repeat multiplied by 10 6

5 New Rule on Repeat Violations (Effective 1/1/17) To maintain fed OSHA approved status, Cal/OSHA must be at least as effective as fed OSHA In 2014, Cal/OSHA proposed amending regulations to align Repeat policy w/ fed OSHA policies Eliminate geographic restriction Expanded type of violation to any violation of a substantially similar regulatory requirement Lookback period expanded from 3 to 5 years 7 New Regulation - Section 334(d) Scope expanded to any violation occurring within the state Must involve a violation of a substantially similar regulatory requirement Subsequent violation must involve essentially similar conditions or hazards Lookback period expanded from 3 to 5 years following: the final order affirming the prior, underlying violation; OR The date on which the underlying citation became final operation of law 8

6 Strategy to Avoid Repeat Violations If your Company operates multiple facilities: Enhance the lines of safety & health communication between sister facilities Ex: Each facility must be aware of any Cal/OSHA activity at sister facilities Act to correct similar issues identified by Cal/OSHA at each location 9 Strategy to Avoid Repeat Violations Challenge citations Get items withdrawn Amend cited standard To a more specific requirement, a very general requirement, an infrequently used standard Amend standard category To General Industry, Construction or Maritime (whichever is not your core business) Re-write violation language Very general or very specific 10

7 Cal/OSHA s New Workplace Violence Rule Workplace Violence Rule (Effective 4/1/17) Broadly applies to health care facilities: Outpatient medical offices and clinics Home health care Emergency medical services and transport Drug treatment programs Health facilities catch all (24-hour stay or longer) 12

8 Workplace Violence Rule Comprehensive written workplace violence plan must include : Effective procedures for involving employees in developing, implementing and reviewing the plan Coordination with other employers whose employees work in the same health care facility 13 Workplace Violence Rule (Cont d) Procedures for obtaining assistance from the appropriate law enforcement agency Effective procedures for accepting and responding to reports of workplace violence Procedures for ensuring employee compliance Procedures for communicating with and training employees Assessment procedures for evaluating risks and correcting and investigating workplace violence hazards 14

9 Workplace Violence Rule (Cont d) Health care facilities must comply with these additional requirements: Maintain violent incident logs over every incident, post-incident response and workplace injury investigation Review effectiveness of plan at least annually Ensure recordkeeping 15 Workplace Violence Rule (Cont d) General acute care hospitals, acute psychiatric hospital and special hospitals MUST report to DOSH within 24 hours any incident involving: Use of physical force against an employee by a patient (or companion) that has the high likelihood of injury, and Use of a firearm or dangerous weapon 16

10 Heat Illness Prevention Standard for Indoor Workplaces (SB 1167) Health Illness Prevention Standard applies to all outdoor places of employment Specific industries subject to additional requirements in high heat (over 95 F or above): Employers must develop and implement written procedures for complying with the Cal/OSHA Heat Illness Prevention Standard 18

11 Heat Illness Prevention California employers are required to take the following steps to prevent heat illness: Train all employees and supervisors about heat illness prevention Provide enough water so each employee can drink at least 1 quart per hour Provide access to shade and encourage employees to take cool-down recovery periods in shade for at least 5 minutes 19 Latest Development SB 1167 direct DOSH to propose by 1/1/19 standards that minimize heat-related illness and injury among workers in indoor places of employment Standards Board to review/approve proposed standards 20

12 Cal/OSHA Penalties May Skyrocket Current Cal/OSHA Penalties Characterization Current Max Penalty Per Violation General $7,000 Failure to Abate $15,000 per day Serious $25,000 Willful $70,000 Repeat $70,000 22

13 Current Cal/OSHA Penalty Policies General Violations (base generally $1,000 to $2,000) Adjustments for severity, extent and likelihood Serious Violations (base $18,000) Adjustments for extent and likelihood Further Adjustments for General/Serious Viol. Size of Business, Good Faith, History of Previous Violations Abatement Credit No adjustments for Serious Accident Related Violations, except as to size of business 23 Agency Civil Penalties to Skyrocket Congress passed the Bipartisan Budget Act of 2015 to avoid a government shutdown Included a little known provision: Civil Monetary Penalties Inflation Adjustment Act Signed into law on 11/02/15 Required fed agencies to increase max civil penalties to catch-up with cost of living adjustments since last time penalties were raised 24

14 Fed OSHA and State OSH Programs Civil Penalties Set to Skyrocket CPI-U - 78% increase since 1990 (last time fed OSHA updated penalties) Initial catch-up adjustment to Fed OSHA civil penalties effective August 1, 2016 Fed OSHA notified state plans they are expected to not only adopt new max penalties, but also to adopt fed OSHA s penalty policies (e.g., reductions for size) to remain at least as effective 25 Fed OSHA Citation Penalties Characterization Current Cal OSHA Max Penalties New Fed OSHA Max Penalties Other than Serious $7,000 $12,471 Serious $25,000 $12,471 Willful $70,000 $124,709 Repeat $70,000 $124,709 26

15 Cal/OSHA s Notice of Intent to Issue a Serious Violation Assembly Bill 2774 In 2010, Calif. Assembly passed AB 2774 Included a requirement for Cal/OSHA to send employer Notice of Intent to issue a Serious citation (at least 15 days in advance) Notice of Intent now known as 1BY for the form number associated w/ the notice 28

16 Front of form: lists allegations Back of form: Space for employer to reply, to try to convince Cal/OSHA not to issue serious citation, and attach documents Form 1BY Documents invited: Evidence of training, inspections, safety procedures, supervision, etc. 29 1BY - Intent and Use Intent - promote early, open dialogue b/n Cal/OSHA and employer before Serious citations issued (opportunity for early settlement negotiation) Reality - bureaucrats and attorneys at Cal/OSHA hijacked process, converted into prosecutorial tool Reply w/ admission against interest, used by Cal/OSHA at hearing If employer s position changes b/n reply and hearing, Cal/OSHA to use as rebuttal evidence of untrustworthiness and the Board to draw adverse inference Cal/OSHA to use reply to justify increasing characterization from Serious to Willful-Serious 30

17 Any Benefit to Responding? Most District Managers and inspectors treat 1BY process as a check-the-box exercise Essentially, no matter the response, Cal/OSHA still issues citation and still characterizes it as Serious 31 Any Harm in Not Responding? Whereas reply can be used against employer, law expressly provides for no adverse inference from employer s election to not reply Employer does not waive the right to raise any defense during appeal of a citation by not replying 32

18 Any Benefit from Not Responding? If employer declines to reply to 1BY, and waits instead for citations before engaging w/ Cal/OSHA: Employer will know entire citation package (often more items than just Serious violations identified in 1BY) Employer can obtain Cal/OSHA s inspection file before having to stake out strategy or settlement position No opportunity for Cal/OSHA to further investigate facts to counter defenses Inadmissible settlement communication In most circumstances, do not reply 33 Cal/OSHA Fatality and Serious Injury Reporting

19 Cal/OSHA Reporting Requirements CA law requires employers to immediately report any work related employee death or serious injury or illness to the nearest District Office occurring in the workplace Serious injury or illness defined as: In-patient hospitalization for 24 hrs for more than observation Loss of any member of the body Any serious degree of permanent disfigurement Report may be by telephone or 35 Time to Report to Cal/OSHA Immediately - as soon as practically possible but not longer than 8 hrs after employer knows or should know of death or serious injury or illness Exigent Circumstances may extend this time frame May be made no longer than 24 hours after the incident if the employer can demonstrate exigent circumstances Exigent circumstances not defined in the safety order 36

20 Contrast w/ Fed OSHA Reporting Report to OSHA w/in 24 hours in-patient hospitalization ( formal admission to the in-patient service of a hospital or clinic for care or treatment ) Report w/in 24 hours any amputation or loss of eye Reportable only if reportable outcome occurs w/in 24 hours of incident Reporting-Related Cal/OSHA Citations Reporting violations min. penalty of $5,000 Criminal misdemeanor charge for failure to report fatality Reporting violations are frequently cited by Cal/OSHA and prone to Repeat violations 38

21 QUESTIONS? 39 Contact Information ANDREW J. SOMMER Partner, Workplace Safety & Employment Practice Groups Conn Maciel Carey LLP San Francisco, CA

22 Disclaimers *This webinar is designed to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. *This webinar provides general information only and does not constitute legal advice. No attorney-client relationship has been created. If legal advice or other expert assistance is required, the services of a competent professional should be sought. We recommend that you consult with qualified local counsel familiar with your specific situation before taking any action.

23 Andrew Sommer, Esq. Andrew Sommer is a partner with Conn Maciel Carey s OSHA Workplace Safety & Labor Employment practice groups. Mr. Sommer represents employers in a wide range of labor and employment matters, with a particular emphasis on occupational safety and health compliance and litigation. Mr. Sommer represents clients in inspections, investigations, enforcement actions and notices of alleged hazards involving OSHA and Cal/OSHA.