CAL/OSHA - Serious Citations May Increase in 2011
 Jan. 28, 2011

CMTA’s Workers’ Compensation Partner, CompWest Insurance, Reviews Assembly Bill No. 2774 Effective January 1, 2011

AB 2774 became law on 1/1/11. The bill revised California Labor Code section 6432, changing the criteria for a serious violation to exist from "substantial probability" to a "realistic possibility", and the inclusion of permanent and significant impairment of a body part or reduction in organ function in the definition of serious harm. In this article we will review the procedural requirements to issue and rebut a serious violation.

This revision establishes a rebuttable presumption that a "serious violation" exists in a place of employment if Cal/OSHA demonstrates that there is a realistic possibility that death or serious physical harm could result from the hazard created by the violation.

If Cal/OSHA establishes a presumption that a violation is serious, the employer may challenge the presumption and establish that a violation is not serious by demonstrating that they did not know and could not, with the exercise of reasonable diligence, have known of the presence of the violation. The employer may accomplish this by demonstrating they took all the steps a reasonable and responsible employer in like circumstances should be expected to take before the violation occurred and took effective action to eliminate employee exposure to the hazard created by the violation as soon as the violation was discovered.

In addition, the revision establishes new procedures and standards for the evaluation and determination of a serious violation citation by Cal/OSHA.

At least 15 days prior to issuing a serious citation, Cal/OSHA will send a notice of Alleged Violation Description, (AVD). The notice will clearly describe the alleged violation and request the employer submit supporting documentation that may mitigate the "serious" classification of the citation. At this time the Division of Occupational Safety and Health is developing the AVD notification and request form.

The revision outlines the information that Cal/OSHA can consider in making its final determination of the citation classification. Information addressing: relevant employee training to prevent exposure to the hazard; procedures for discovering, controlling access to, and correcting the hazard or similar hazards; supervision of employees exposed or potentially exposed to the hazard; procedures for communicating about the employer’s health and safety rules and programs.

The notice will also give the employer an opportunity to provide information before the citations are issued. The employer may wish to provide an explanation of the circumstances surrounding the alleged violative events; why the employer believes a serious violation does not exist; why the employer believes its actions related to the alleged violative events were reasonable and responsible so as to rebut, any presumption that serious violation exists.

The employer is not required to respond to the notice request and will not be barredfrom presenting the information at the hearing. However, if a response is sent in, the employer may offer different information at the hearing than what was provided to the division and may explain any inconsistency. However, a negative inference could be drawn from the prior inconsistent factual information.

So a word to the wise, document your training, self-inspections, hazard evaluations, safety rule enforcement and corrective actions taken on identified hazards. These documents may help you defend against a serious citation.

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