Cal/OSHA’s at your Jobsite – Now What?

Below is an A – Z primer on what happens when a Cal/OSHA inspector reports to a job site to conduct an inspection.

Regulatory background

The Department of Industrial Relations (DIR) within the Labor and Workforce Development Agency has administered the Cal/OSHA program since 1973 when California’s plan was submitted to federal OSHA for approval.

The major units related to Cal/OSHA are:

• Division of Occupational Safety and Health – enforces worker safety and health standards, offers free training and consultation to employers and their employees for complying with the workplace safety and health regulations
• Occupational Safety and Health Standards Board – adopts, amends and repeals standards
• Occupational Safety and Health Appeals Board – hears appeals from employers regarding Cal/OSHA enforcement actions

Why is a Cal/OSHA inspector at my worksite today?

There are two types of inspections conducted by Cal/OSHA:

• General scheduled inspections – an inspection of employers randomly selected in specific industries, or as part of a national or local emphasis program
• Unprogrammed Inspections
  • Accident – an inspection resulting from the requirement that an employer must report a fatality, catastrophe, or serious injury or exposure within eight hours of when the employer knows of this event. Please make sure that responsible parties in your company are aware of this requirement as an affirmed violation carries a mandatory minimum penalty of $5,000.00!
  • Complaint –
    • A formal complaint is one filed by an employee, employee representative, employer of an employee at a multi-employer worksite, or a government agency. Formal complaints are generally investigated with an onsite investigation within 3 working days for serious complaints and within 14 calendar days for non-serious complaints.
    • An informal complaint is one filed by anyone who is not an employee or employer, or an employee filing an anonymous complaint. Serious informal complaints are investigated by phone/fax and non-serious by letter to the employer.
  • Referral – a report of hazards or alleged violations originating from either safety or health compliance officer, or a media source.
  • Follow-up – an inspection conducted to determine whether the employer has abated violations previously cited on a Cal/OSHA inspection.
  • Unprogrammed related – an inspection of an employer at a multi-employer worksite that was not identified as a participant of the original unprogrammed inspection assignment

Initial contact

The inspector will ask for permission to conduct an inspection from a management level representative of the employer, or if none is present, from the employer representative who appears to have the authority to grant permission to conduct the inspection.

If permission is refused, Cal/OSHA will obtain an inspection warrant. A Cal/OSHA inspection is based on one or more criteria, and may focus on part or all of the workplace or operating procedures.

Inspection priorities are:

1. Imminent danger
2. Fatality or catastrophe
3. Investigation of serious injury or exposure
4. Formal complaints
5. Scheduled inspection, usually of businesses in industries with higher-than-average potential risk and/or Experience Modification Rates

Presentation of credentials

Cal/OSHA inspectors must identify themselves to the employer by showing their State of California photo identification card and the Division of Occupational Safety and Health business card prior to conducting an inspection.

Opening Conference

During the opening conference held with the employer’s highest ranking representative available, the following will generally occur:

1. The inspector explains the reason for and the scope of the inspection
2. Joint opening conferences are held with the employer representative and bargaining unit representative of the employees – if a joint conference cannot be held, separate conferences are held
3. The inspector will review the employer’s permits and registration when appropriate, documentation of workers’ compensation coverage, occupational safety and health records, and the written Injury and Illness Prevention Program (IIPP) and any other required programs. The inspector may leave a Documentation Request with the employer which seeks one or more records related to the workplace safety program.

Walkaround

The inspector informs the employer of inspection walkaround procedures, conducts employee interviews (Cal/OSHA has the right to interview employees in private), and photographs and testing and environmental samples may be taken.

If hazards observed during the walkaround are violations of Title 8 safety orders, citations will be issued and monetary penalties proposed.

Enforcement staff will collect pertinent documentary and physical evidence during the inspection.  If during the investigation of an accident or occupational illness it is necessary to ensure that the work site – or physical evidence located at the work site – is preserved until the inspection can be completed, enforcement staff will issue an Order to Preserve.

Citations

If after an inspection or investigation Cal/OSHA believes that an employer has violated any Title 8 standards, order or regulation, a citation is issued with a reasonable time for abatement (correction).

The citation must be prominently posted by the employer at or near each place of violation referred to in a serious citation, or in a place where it is readily seen by all affected employees – and must remain posted for a period of three working days or until the condition is abated, whichever is longer.

Classification of Violations

1. Regulatory – pertains to permit, posting, recordkeeping, and reporting requirements
2. General – a violation which is specifically determined not to be of a serious nature, but has a relationship to occupational safety and health of employees
3. Serious – exists if Cal/OSHA demonstrates that there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the hazard
4. Repeat – is a violation where the employer has abated or indicated abatement of an earlier violation occurring within the state for which a violation was issued, and upon a later inspection, Cal/OSHA finds a violation of a substantially similar requirement
5. Willful – is a violation where evidence shows that the employer committed an intentional and knowing, as contrasted with inadvertent, violation, and the employer is conscious of the fact that what he is doing constitutes a violation of a safety law

Civil Penalties

1. Regulatory – an employer who commits any regulatory violation shall be assessed a civil penalty of up to $12,471
2. General – violations of Cal/OSHA standards that are classified as general may carry a penalty of up to $12,471
3. Serious – such violations shall be assessed a penalty of up to $25,000
4. Repeat – on the first occasion of a repeat violation, the initial penalty shall be multiplied by two; the second repeat carries a multiplication factor of four; and the third occasion shall carry a multiplication factor of ten. The resultant penalty shall not exceed $124,709
5. Willful – such violations will carry a proposed penalty of not less than $5000 nor more than $124,709.

Penalties are based on the severity, extent and likelihood of the violation.

Adjustments to the proposed penalty are made based on the size, good faith, and history of the employer.

Abatement credit

The penalty for general violations is reduced by 50% on the presumption that the employer will correct the violations by the abatement date.  Generally, Cal/OSHA will not grant an abatement credit for serious violations unless the employer abates the violation at the time of the initial or subsequent inspection prior to the issuance of a citation, or the employer submits a signed statement under penalty of perjury, together with supporting documentation within the period set for abatement by the inspector.

Closing conference

At the conclusion of the inspection, the inspector holds a closing or exit conference with the employer to discuss any alleged violations of standards observed and any requirements for abatement.

The possibility of a follow-up inspection is also discussed, as are the employer’s right to contest any citation or penalty, reasonableness of the abatement or abatement date that might be received from Cal/OSHA, availability of an informal conference to review Cal/OSHA’s enforcement actions, and the employer’s responsibility to post citations and notify Cal/OSHA of abatement of certain violations.

Verification of abatement

Enforcement staff assign an abatement date for each cited violation.  Abatement is usually required within no more than 30 calendar days for general violations and 7 days for serious violations.  Employers are required to submit proof of abatement to the Cal/OSHA District office which issued the citation.

Informal conference

Following receipt of a citation or notice, an employer may request a discussion with the Cal/OSHA district manager.  These informal conferences are conducted within 10 working days of citation issuance.  If an appeal is filed, the conference may be held any time prior to the scheduled date of an appeal.

The employer may discuss requests for extension of abatement dates, and presentation of evidence which indicates that no violation exists, or that the proposed penalties are inappropriate.

Cal/OSHA Appeals Board

Upon receipt of a citation, the employer may appeal to the Cal/OSHA Appeals Board in reference to the violation, proposed penalty or abatement date.

Any appeal must be made in writing within 15 working days of receipt of a citation.  If an employer fails to notify the Appeals Board of their appeal within the 15-working day limit, and no notice is filed by an employee or employee representative within that time, the citation becomes a final order not subject to review by any court or other agency.

Appeals can be resolved by a telephone prehearing conference without the necessity of a hearing.  For appeals that require a hearing, the hearing is held in the Cal/OSHA district office as near as practicable to the site where the violation is alleged to have occurred.

Although the appeal procedures are designed so that employers may represent themselves, attorneys represent employers approximately 50% of the time.

The hearing is conducted by an administrative law judge who issues a decision.  Parties affected by the decision may file a petition for reconsideration within 30 days if they disagree with the decision of the judge.  Appeals Board reconsideration requests may be appealed to Superior Court.

(This article was prepared by Chris Lee, Safety Consultant to SCGMA.  Contact Chris at ccarllee@sbcglobal.net or by phone at 510-821-0242 with any questions or concerns)