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Three Cal/OSHA Rulemaking Packages Soon

Posted on May 14, 2010
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DOSH Says Three Big Rulemaking Packages Are Coming Soon
Cal-OSHA Reporter
April 29, 2010

It looks to be a busy spring and summer on the Cal/OSHA regulatory front, with the Division of Occupational Safety and Health (DOSH) expected to promulgate three major rulemaking packages soon.

DOSH is in the final stages of crafting an affirmative defense for controlling employers on multiemployer worksites, a revamping of the division’s penalty structure for employers who receive Cal/OSHA citations, and a Director’s regulation clarifying what constitutes a serious violation.
The first two packages have been in development for a couple of years and the latter is of more recent vintage but “real close” to completion, DOSH Chief Len Welsh tells Cal-OSHA Reporter.

DOSH began work on the controlling-employer defense as a way to provide clarity to general contractors about their responsibilities on multiemployer worksites and get the issue out of the courts. Two cases, Overaa Construction and Harris Construction, have pushed the issue in the court system and so far DOSH has prevailed. Overaa, which reached the California Court of Appeal, held that the burden of proof for proving “due diligence” on the part of a controlling employer was up to the employer.

The Harris Decision After Reconsideration by the Cal/OSH Appeals Board, on the other hand, put the burden of proof on DOSH to show that the controlling employer was in a position to prevent the violative condition being cited. That DAR was overturned earlier this year in Sacramento Superior Court.

The DOSH plan is to create a “complete defense” for controlling employers. As envisioned at the last advisory committee meeting in early 2009, it would not be an occupational safety and health standard but would direct DOSH and the Appeals Board. Under the version discussed at that meeting, it would be the division’s responsibility to show that a contractor qualifies as a controlling employer. The agency would request information from the employer to support the application of the affirmative defense.

The defense itself would apply if the employer took “reasonable and diligent steps to prevent reasonably anticipated violations” and took prompt action to correct serious hazards when they were discovered.

Give the Good Guys a Break

The penalty provision reforms are intended to make the Cal/OSHA system less onerous, especially for small employers, and encourage quick abatement of serious hazards.

In 2008 stakeholder discussions, DOSH said it envisioned eliminating the “regulatory” violation classification and instead citing such violations as recordkeeping infractions, failure to post required information and failure to report serious injuries or fatalities as “low” general violations. Serious violations would be classified under several hazard scales, from low to “egregious,” similar to the way Fed-OSHA classifies violations.

Penalties for serious violations, if the regulation holds to the concept it announced in 2008, would start at $10,000 for low classifications and go up to $25,000 for egregious violations.

DOSH also has said it wants to replace the current factors that determine penalty enhancements or credits with aggravating or mitigating factors.

The serious-violation regulation is intended to clarify when a violation should be so classified. Fed-OSHA has notified the Appeals Board that the way it defines serious violations might not be as effective as that of the parent agency. DOSH is concerned because in a number of cases involving serious incidents, the board has reclassified serious violations to general.

To sustain a serious classification, DOSH has the burden of proof to show that there is a substantial probability that death or serious physical harm could result from the violation. The board holds that opinions on probability must be supported by “reasonably specific scientific or experienced-based rationale, or generally accepted empirical evidence.”

Welsh calls that burden “impractical, unrealistic and calculated to make it almost impossible for us to meet our burden.”
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