Fall 2023 Updates re: Recent Cal/OSHA Appeals Board's Decisions and Rulemaking

With the change in the season, we thought it was a good time to reach out with some updates.

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. 

While in this case it was the respiratory protection standard that was cited, the Court confirmed that the Board has used the “harmful exposure” and “zone of danger” standards to evaluate other regulations as well. The Court stated that the “‘harmful exposure’ standard requires ‘[a]n exposure,’” not a theoretical exposure, where it is difficult to prove that exposure. The Court likewise stated that the “‘zone of danger’ standard requires an area that presents a danger to employees,” not an area that may present a danger, where it is difficult to prove that danger. The Court has remanded the case to the Superior Court to enter a new judgment. 

For now, the Appellate Court’s case is not citable (it is marked as unpublished), though Granite Construction has filed a petition to have it officially published. In the meantime, the Court’s rebuke of the Board’s loose interpretation of “exposure” is notable, and can be instructive where the Board may overreach in other cases. The bottom line is that the Division must prove an actual exposure to prove a violation.

In rulemaking news, the Cal/OSH Standards Board is finally seriously considering an indoor heat illness prevention regulation. Public comment closed on August 22, 2023. This regulation has been in the works for quite some time, but it looks like we may finally have an approved version soon. The proposed regulation and other information can be found here: https://www.dir.ca.gov/OSHSB/Indoor-Heat.html. Now is the time to determine if the pending regulation will apply to your work place, and what potential preparation will be necessary to implement the standard.

As always, we encourage you to attend an Appeals Board meeting. This month has two meetings on calendar: October 5, 2023 and October 19, 2023. You can find the Board’s schedule, notices and agendas here: https://www.dir.ca.gov/oshab/meetings.html#current

Lastly, with the recent uptick in COVID-19 cases, be sure to review your COVID-19 Prevention Program and ensure that you are implementing the appropriate provisions. The Division is still reviewing these plans, and you can expect them to enforce all aspects of Sections 3205 through 3205.3. You can find those regulations here: https://www.dir.ca.gov/Title8/sb7intro.html

Feel free to reach out with any questions. Take care and stay safe and healthy!