The IIPP Existential Crisis Part 2: The Repercussions of an IIPP Citation
This is the second of several posts on the IIPP “existential crisis” happening in California. To read the first post in this series, please go to our website: https://lisaprincelaw.com/the-prince-firm-blog/the-iipp-existential-crisis-part-1-why-is-this-regulation-so-common. After you’ve reviewed that, you are ready to read this:
So, you have an IIPP citation from Cal/OSHA. Now what? Many times, an IIPP citation is issued with a negligible proposed penalty of less than $1,000.00. As such, it is easy for an Employer to look at this citation and decide to just pay the penalty and move on. In fact, Cal/OSHA will often encourage an Employer to just accept the citation. The Division views a General IIPP citation as “no big deal”, almost like a gift to the Employer. After all, why would you want to spend significantly more than the penalty amount to defend the citation? From a cost perspective, this makes sense. However, blankly accepting the citation as issued is problematic for a number of reasons.
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The IIPP Existential Crisis Part 1: Why is this regulation so common?
This is the first of several posts on the IIPP “existential crisis” happening in California. As you are likely aware, every employer in the state of California must have an Injury and Illness Prevention Plan (IIPP). (T8 CCR Section 3203.) The plan must be established, implemented, and maintained. So, having an IIPP alone won’t cut it. It must also be effectively implemented and maintained. Among other requirements, this plan must have procedures for identifying and evaluating workplace hazards, as well as procedures for correcting those identified hazards. (See Sections 3203(a)(4) and (6).) Employers must effectively implement these procedures. While you may think that you are complying by conducting regular worksite inspections, and correcting the hazards you find, Cal/OSHA thinks otherwise. In fact, each year, Section 3203 is among the most cited regulations by Cal/OSHA. Subsections (a)(4) and (6) make up a significant portion of those citations. Why is that?
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DOSH Gets Egregious in its Enforcement Against California Employers
The Severe Violator Enforcement Program (SVEP) is now in effect. The Division introduced the program internally with a Policy and Procedure update (P&PC-200). The program is not based upon an amendment of the California Labor Code or Title 8 Regulation and, apparently, required no public notice.
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Indoor Heat Illness Standard Now in Effect
On July 23, 2024, California’s Office of Administrative Law approved the Cal/OSH Standards Board’s new indoor heat illness regulation. The regulation went into effect immediately. Employers should expect Cal/OSHA to enforce the new regulation without delay.
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Cal/OSHA Workplace Violence Prevention Guidance (SB 553)
As you are likely aware, SB 553 will go into effect on July 1, 2024. SB 553 amended CA Labor Code Section 6401.7, and requires CA employers to develop and implement a workplace violence prevention plan in accordance with Labor Code Section 6401.9. Cal/OSHA has now published guidance and a model plan on its website, which can be found here (click on Workplace Violence Prevention): https://www.dir.ca.gov/dosh/PubOrder.asp
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A Few Words About Due Process and State Action
I was recently contacted by a journalist planning an article about Cal/OSHA and posing the question of why more appeals of Cal/OSHA citations are being filed. We had a conversation about the significant impact that a Cal/OSHA citation may have on an employer's ability to do business, the dispute resolution process once a citation is issued, and the employer's right to appeal.
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Who is LETF and Why Should You Care?
Based on a number of recent appeals filed by our office for citations issued by Cal/OSHA’s Labor Enforcement Task Force (LETF) Unit, we thought it might be helpful to explain what and who LETF is. LETF is a coalition of various state and local agencies that include Cal/OSHA, the CA Labor Commissioner, the Contractor’s State License Board and the Employment Development Department. LETF falls under the umbrella of the Department of Industrial Relations. The LETF’s mission is to “combat the underground economy”. The underground economy is a reference to employers who operate without the proper licensing and workers’ compensation coverage, engage in possible tax evasion, engage in wage theft, and have general unsafe work conditions (which is where Cal/OSHA comes in).
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New Silica ETS Going Into Effect for 2024
As many of you may already know, the Cal/OSH Standards Board just voted to adopt an emergency temporary standard (ETS) for silica protections. This ETS goes into effect on December 29, 2023, which means employers must be compliant with the new standard on that date. While the impetus behind the ETS was the fabricated stone countertop industry, all California employers will be required to implement new protections during certain tasks (e.g., wet methods for cutting/polishing stone, respiratory protection).
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Fall 2023 Updates re: Recent Cal/OSHA Appeals Board's Decisions and Rulemaking
In an interesting turn, the Third Appellate District Court in Sacramento recently granted (in part) Granite Construction Company’s petition for writ of mandamus. The Court reversed the Cal/OSH Appeals Board’s ruling that had sustained citations for exposure to Valley Fever. Though one citation remained for failure to conduct fit testing for required respirators, the Court overturned two other citations for exposure and failure to address exposure. Importantly, the Court reminded the Division that it must prove an exposure in order to prove a violation.
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