New Cal-OSHA Standards for Repeat Violations
These new Cal-OSHA “Repeat Violations Standards” that are now law were first explored last August. At that time Cal-OSHA issued a Proposal for Rulemaking having to do with the definition of repeat violations.
The final rule which is now law went into effect January 1, 2017. This rule will bring California Osha more in line with the federals agency. This will create a much broader interpretation of what a repeat violation is.
This new law will also bring with it much tighter restrictions on employers here in California. This rule has become law after a year of debates and public comments.
It is important for employers to understand a little background so that you can better understand what this new law will mean for you moving forward. In times past the term repeat offender had a much clearer definition than what it will have going forward.
Here is the definition of the old law and then after we have reviewed what used to be we will discuss what is different and explain what this means to you.
- In times past employers must have been already cited for the same violation under the same standard
- In order for the violation to considered a repeat offense, the employer must have violated the same rule or regulation within a three-year period.
- Another qualifier was that the violation needed to be at the same location as the previous violation or at least within a certain geographical region of the previous location.
Cal/OSHA Will Now Look Back Five Years
The way that things used to be that employers had a better chance of beating the system because the employer could appeal the citation. Appealing the citation causes the citation to never become final, and in order for a citation to be a repeat, it must be finalized. So the way that the employer could beat the system was to appeal every citation until the three years came to an end. With no finalizing of the citation, there can be no repeat offense.
Under the new law, the strategy to appeal strictly for the purpose of shortening or eliminate the look-back period is no longer to the employers benefit for the following reason.
The new starting time for calculating the look-back period start at either:
- the date of the final order affirming the existence of a previous violation cited in the underlying citation;
- the date on which the underlying citation becomes final by operation of law; or
- the date of final abatement of the violation cited in the underlying citation.
Cal-OSHA has also lengthened the window from three years to five years.
Cal/OSHA Will Now Consider Substantially Similar Violations
In the past, the definition of a Repeat violation was when an employer had, had an accident or violation and then the employer corrected the hazard. And then at a later date, the same accident would happen again at the same facility.
No, the repeat offense rule has been amended and expanded making it easier for Cal-OSHA to make a similar violation to the first offense a repeat offense. The term that Cal-OSHA will be using for this is called “substantially similar”.
The new Cal-OSHA was the way that the federal OSHA, had been enforcing the repeat offense law and the feds are forcing all state agencies to comply with OSHA now. One interesting point in all of this is that there is no established definition of “substantially similar. The feds don’t have one and neither will Cal-OSHA.
There is a pattern that has emerged from cases that have been appealed, but there is no formal definition. This is good news for employers because it gives them some wiggle room. It is clear this new law will now allow Cal-OSHA to fine employers as repeat offenders.
Cal-OSHA will no longer be restricted geographically
In times past the repeat rule applied only to the same job site, that will no longer be the case. So if you have facilities all over the state and you have the same accident in another one of your facilities anywhere in the state.
What does this mean for California Employers?
This means that starting in 2017 will have to be much more safety aware. The repeat offense and the increased fines will not apply only to serious violations; they will apply to general violations as well. The employer will now have to take some time and analyze the fine before they simply pay it.
Employers will now have to go over their violations and see if this accident is similar in nature to any other one that they have had in the past five years.
This new law is going to increase the cost of abatement procedures and is going to increase the number of repeat offenses. At the end of the day, this could be a very costly proposition for employers.
It will now be in the best interest of employer’s statewide to make sure they the employee’s safety is taken very seriously. Now is the time to take a hard look at what you are doing and evaluate it making sure that your companies safety practices will ensure and safe and healthy work environment.
This new law could come down very hard on both the construction industry as well as the agriculture industry.
What is the best way for employers to protect their rights?
In view of all the new California Labor Law and Cal-OSHA Standards, the best way for an employer to protect themselves is to hire a Cal-OSHA Consulting Service that will help them.
The problem with this is how do you know which one to hire? I would encourage employers to ask the how much are actually in the field? This is an important question to ask in view of the fact that many time the laws are enforced differently than how they are written.
CES Today has been helping employers since 1997, we are in the field regularly and we know how the laws are being enforced. One of the benefits that we can provide clients is that we also can handle all of your companies Labor Law needs as well.
Should you have any questions please give us a call today. We love questions.