Cal\OSHA Changes Interpretation of Laws

For 2017, Cal\OSHA is aligning itself more completely with OSHA in the way it views repeat offenders.  You can read the whole report written by Littler Global at this site https://www.littler.com/publication-press/publication/calosha-amendment-significantly-expands-its-definition-%E2%80%9Crepeat%E2%80%9D

In Summary, Cal\OSHA can now go back 5 years and if you have a “substantially similar” citation at any of your locations in California, it will be considered a “repeat” violation and you could be subject to fines of over $70,000.  The five year look-back begins on the date that the citation is finalized, so if you appeal the citation, it could delay the finalizing date and mean the actual time from the original violation could be almost 6 years old and still be within the 5-year window for repeats.  This may affect strategies going forward.

Also, please take note of the fact that this is a repeat at any facility within your organization that is in the State.  So, if you have a citation for your eyewash station in one location, if you have a shower citations (substantially similar) problem in another location, they could be listed as repeat violations and the fines would grow about 4 fold.

Comparing first-quarter figures from the past six years, the number of Cal/OSHA investigations has risen steadily, from 2,608 in 2011 to 3,375 in 2016, nearly a 30% increase. Citations for alleged serious violations have increased even more significantly – by 330% in the same period. Alleged serious violations represented 21% of total cited alleged violations for the first quarter of 2016 versus only 10% in 2011.

So, be prepared.  Walk your property with an open eye.  Invite HR Mobile Services to come out and help you identify problems.  Check your paperwork!

The clear message here is that you should take these citations seriously and implement changes at all locations to address an issue so that it does not cost you again.

Final Thoughts on 2016 and a Caution to Legislators and Employers for 2017

I will begin this by saying that some of this article is focused on California, while much can be applicable to the rest of the United States.  The San Joaquin Valley is a microcosm of what has taken place across this country.  The rural, farming and agriculture areas of this country are tired of being ignored.   And finally, they stood up in November and got the attention of the people that think that life is only lived in big cities.

California politicians are very good at double speak.  They say they are supportive of Agriculture, but none of them every actually come to the Valley to talk to business owners.  On the rare occasion they do come to the Valley it is to talk to the workers or to point at a High Speed Rail train that is not going to do anything for people here.

The fact is, California, and many State governments across the country, would prefer if Agriculture would just go away.  They would much rather we were all working in a state full of Silicone Valley businesses.  They are cleaner, there would be no fight over water, and we could just ignore it altogether.  In the past election, we did not get visits by Hillary (Trump dropped in quickly) and Kamala Harris (the new Senator) didn’t bother with and knows nothing about this side of California.  The Governor has only been to Fresno a few times in 6 years and that is never to learn about real issues (he knows it all I guess).

For the rest of the country, the story is similar.  President Obama flew over the rest of the US and only visited a few coastal states in 8 years in office.  He came to California almost monthly to San Francisco or Los Angeles to attend a fund raiser, but on the ONE occasion that he came to the valley to discuss the drought, he got off the plane, went to a dirt field for about 1 hour and then flew out because he had a golf date in Southern California (where they had water to make beautiful greens for his putting).  We never saw a thing done about the drought after that and still have not until last week when a bill (0pposed by outgoing Senator Barbara Boxer) was signed by the President to help us build dams.  This was not because of any work done by the President, but by the work of our Representatives from the Valley that finally got enough support from  enough people in both parties to get this to the President despite Barbara Boxer.

One of the most telling examples of how Legislators view business owners is how they write regulations.  Almost all regulations start with the assumption that most employers are bad.  In fact, many times it is actually written into the introduction and states that this bill must be passed to protect the workers, etc.  The reality is that most employers work very hard with their employees to create a family atmosphere.  The regulations get in the way of much of this.  Every time the government mandates a benefit that many people are already doing for their employees, they add cumbersome requirements, and many pages of fines and penalties if you do not do it exactly right.  In a more practical world, doing your best should count for something, but not according to our Legislators.  So, every time they add a benefit, many employers remove another benefit so they can afford the one the government wants.  There is only one pot of money, but Legislators think employers can just invent more money like Congress does and it just isn’t the case.

If there is one takeaway from the recent Presidential elections is that middle-America and rural areas are tired of being ignored or shoved aside by our representatives.  If you don’t visit and really listen to their issues, you run the chance of being replaced.  Not all issues affecting business and employees can be handled by looking out the window in Los Angeles or Sacramento or Washington, D.C.  I hope they pay attention or 2018 could be a very turbulent year as well.

BUT THERE IS A RESPONSIBILITY OF THE OWNER\EMPLOYER AS WELL:

In 1999, in California, Governor Gray Davis signed the labor bills establishing daily as well as weekly overtime rules.  It also established a 30 minute employee meal with stern regulations.  Here we are 17 years later and there are still a number of employers who ignore, or do not know of these laws, or simply choose to go their own way.  This affects all of us.  When an employer does not follow the simple laws and refuses to do things like installing a time clock and paying people for the hours they work, they give every employer a black eye and give every Legislator an easy excuse to add new laws and regulations.  In other words, a few stubborn bad employers are making business hard for everyone else.  Instead of just complaining about the State or the Federal government, if  you know an employer that is not following the law, talk to them and let them know they are a big part of the problem.

The easiest way to pay people with the least amount of work on your part is to pay people exactly what they work based on a time clock.  Anything else you are doing is why we keep getting more “wage theft” headlines.  Let’s all resolve in 2017 to pay people for what they work and hold them accountable for the job.  Spend your hard time enforcing your rules instead of working hard to explain a poor payroll practice.  With minimum wages going up and other regulations coming to many States, 2017 is a good year to get on board the right train.  HR Mobile Services, Inc. is there to help you do it, but you have to follow the program to make it successful.

Have a Happy and Prosperous New Year!!!

GOV. BROWN SIGNS INDOOR HEAT ILLNESS MANDATE

Yes, you read that correctly.  The State of California feels that people working in-doors deserve the same protections from Heat Illness training as outdoor workers.  Now, on some levels this makes sense.  For instance, a worker in a factory could be exposed to severe heat conditions. Other similar places could be electrical generation areas, greenhouses, building construction, attic insulation installers, electricians, plumbers, etc.  So, this could have some practical applications in the workplace.

That being said, it is a very poorly written bill, SB 1167 (Mendoza; D-Artesia) , which gives almost no direction as to the definition of an “indoor occupation” that would be covered under this act.  In fact, the entire project is left almost completely to Cal\OSHA to write and implement this program.  They have to begin the rule making process in 2017 to submit a proposed rule to the Cal/OSHA Standards Board by January 1, 2019.

This is a stakeholder driven process, so it is very important that your industry is part of the conversation.  If you have an advocacy group, get them involved early to state your position before the rules are written.  It is almost impossible to fight or have them re-written later.

 

NEW CHANGES TO THE HEAT STRESS REQUIREMENTS IN CALIFORNIA

Heat Illness Changes Approved – It’s Training Time

Many of our customers have already had their Heat Stress Prevention Training for 2015.  However, these new regulations will need to be addressed by May 1.  We in California know that this is ridiculous because we already had temperatures near 80 degrees in early February in several areas.  Definitely by March we should have a few days over 80 and theoretically we would be implementing this new regulation before retraining can take place.  SO, while you wait for retraining, below you will find the new requirements and you can prepare for the new season.  Be proactive.  We can all complain, and we should, but at the end of the day, it is still the law and you must comply until they come to their senses.

Over the objections of employer groups and applause from labor representatives, the Cal/OSH Standards Board approved major revisions to the state’s heat illness prevention standard. Executive Officer Marley Hart said the board would request an early effective date for the revisions from the Office of Administrative Law – May 1 instead of July 1.


That means that employers must revise their heat illness programs and train employees on an accelerated schedule, with barely two months before the changes become enforceable. Under normal circumstances, the changes would trigger on July 1, as OAL sets effective dates quarterly and April 1 is too early. But Cal/OSHA wants the changes in place for the growing season.

The revisions, which the Division of Occupational Safety and Health say are necessary based on the Division’s enforcement experience, are aimed at specifying the requirements for provision of water and shade. It also ramps up requirements under the high-heat provisions and adds new language on emergency response procedures, acclimation and training. Specifically:

  • Water must be “fresh, pure, suitably cool” and located as close as practicable to where employees are working, with exceptions when employers can demonstrate infeasibility.
  • Shade must be present at 80 degrees, instead of the current 85, and accommodate all employees on recovery or rest periods, and those onsite taking meal periods.
  • Employees taking a “preventative cool-down rest” must be monitored for symptoms of heat illness, encouraged to remain in the shade and not ordered back to work until symptoms are gone. Employees with symptoms must be provided appropriate first aid or emergency response.
  • High-heat procedures (which will remain triggered at 95 degrees) shall ensure “effective” observation and monitoring, including a mandatory buddy system and regular (hourly) communication with employees working by themselves. During high heat, employees must be provided with a minimum 10-minute cool-down period every two hours.  Communication plan needs to be in your training plan materials and your IIPP.
  • Emergency response procedures include effective communication, response to signs and symptoms of heat illness and procedures for contacting emergency responders to help stricken workers.
  • Acclimation procedures including close observation of all employees during a heat wave – defined as at least 80 degrees. New employees must be closely observed for their first two weeks on the job. 

The board voted 5-1 to approve the changes, with management representative Bill Jackson casting an emphatic “no.” He commented, “My belief is that the Division made the decision that this is necessary, and by god, we’re going to do this. There isn’t an ounce of necessity” to it.

But chairman Dave Thomas, who last month stated publicly that he was opposed to the proposal as written, said he had changed his mind after re-reading the proposal and remembering his charge as board chair. “This is reasonable enough for me,” he said.

Employer representatives hammered the necessity argument, saying DOSH has refused to provide requested data to prove the changes are necessary. But labor reps said the continuing deaths and illnesses they believe are attributable to heat illness support the argument for change.

 

New Proposed Rules for Heat Illness!!

The following is quoted from Loss Prevention Specialists, LLC:

DOSH Seeks Major Changes to Heat Illness Standard

Thursday, May 29, 2014

The Division of Occupational Safety and Health has just proposed major revisions to California’s heat illness prevention standard. The action

 

is not formal rulemaking, but sending its proposal to the Standards Board is a big first step in revising the almost 10-year-old regulation. California has lead the nation in heat illness standards.

Employers with heat exposures may be well advised to begin adoption in advance.

Among the proposed revisions:

• Requiring employers to provide drinking water as close as practicable but no more than 400 feet from employees, with some wiggle room.

• Shade to be provided when temperatures hit 80 degrees (currently 85F) and no farther than 700 feet from workers.

• Employees who need to take a “cool-down rest” cannot be ordered back to work until symptoms of heat illness have abated. Employers also would have to monitor the worker during the rest period and provide emergency services if the symptoms worsen.

• High-heat procedures would kick in at 85 degrees, instead of the current 95F. The draft also adds specific instructions for observing employees for heat illness signs during high-heat.

• Expanding the training topics that must be provided to employees.

• Adding specific instructions on what must be contained in employers’ written heat illness prevention procedures.

• Requiring supervisors to take “immediate action” if employees show signs of heat illness. Such employees would have to be offered emergency medical services before they could be sent home.

Once the Standards Board reviews the draft, it might return it to DOSH for changes or for questions. No timetable has been set for formal adoption but this appears to be on a fast track.

Editor Note:  If you are a HR Mobile Services, Inc. customer, we are already addressing some of these actions before they become law or regulation.

6 Most Common Reasons for Separation from Employment

Terminations spark a lot of legal actions.  They can range from the simple EDD claim for unemployment to a Department of Fair Employment and Housing (DFEH) claim which may tie you up in legal actions for a year and cost thousands of dollars to defend yourself.  From a article by theHRSpecialist.com:

1. New Hires….when you release a new hire for not following procedures, do you have a paper trail that shows you properly trained the employee?

2. Absenteeism…Documentation is critical to prove your position.  Further, did you follow your policy of progressive discipline or did you not issue warnings and then want to terminate because “he has been late a lot”.  Again, you are opening yourself for trouble.  Always document at the time of the incident.

3. Misconduct….Did you get both side in the discussion before the termination, or are you relying on the supervisor’s opinion?

4. Suddenly Declining Performance….What is the root cause?  Did you ask?  Can you document you made efforts to change the behavior?

5. Resignations….Did you ask them to reconsider?  Do you have an exit interview or other process?  Have you heard of “constructive discharge”?

6. The “no reason” termination….Do you have an “at-will” policy in place?  Do you apply it correctly?  Have you documented the “real” reason you terminated the employee for future reference?

HR Mobile Services, Inc. works with many of these situations on a daily basis.  We are here to help you work through the termination process to minimize your exposure and control the situation.  It is a good policy to contact us when you have disciplinary issues before it gets to the termination process so we can lay the proper groundwork.  Call us and we can walk you through it.

Help with SDS and Global Harmonization

If you are looking to  comply with the new Global Harmonization standards that begin in December, 2013, you may want to read on.  In conversation with Cal\OSHA, I asked them what they would be looking for as the law unfolds.  First and foremost is that you are training your employees regarding the pictograms and the use of the 16 sections of the SDS sheet.  Most important there is that they know to get a copy to send along with any employee who is going to a clinic because they were injured by a chemical in the SDS book.

The other main focal point for Cal\OSHA is secondary containers.  Previously, when you moved a chemical from the main container to a smaller container, you just wrote on the bottle what was inside.  Not any more!!!  Now you must identify the secondary container with the appropriate pictogram and warnings.  I have found that you can get a roll of stickers from Grainger.com to use on those secondary containers.  It is a small cost to save a expensive fine during a visit from Cal\OSHA and we recommend you look into purchasing any required stickers.

DISCLAIMER FOR THIS BLOG FORMAT

We work very hard to bring you the most up to date and correct information possible at all times. However, reinterpretation or delay of certain regulations and rulings from State and Federal courts and departments make things very fluid. This is especially true of large legislations such as the Affordable Care Act (ObamaCare).

The opinions expressed on these pages by HR Mobile Services, Inc., commenters, and quoted sources are only opinions and should not be taken as Legal Opinions or Statute. For legal or insurance advice, we encourage you to contact your own attorney or other licensed agents you trust as well as our advice. This will give you the information you need to form your own opinion on any subject.

We encourage people to leave a comment or opinion and as long as it is appropriate to the topic and not obscene. We monitor this blog and we reserve the right to allow or deny the posting of comments.

Thank you for your cooperation and understanding.