The IIPP Existential Crisis Part 1: Why is this regulation so common?

Fall Greetings,

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?

 The answer is simple, for Cal/OSHA anyway: if an employer has had any kind of incident, accident, or injury, clearly it must have done something wrong. And, that means the employer must not have properly identified and/or corrected some hazard, and this led to the circumstances underlying the incident. Cal/OSHA can’t seem to imagine any other scenario. Of course, hindsight is 20/20, and it is easy for Cal/OSHA to come in after an incident and say the employer “coulda, shoulda, woulda” identified and corrected that hazard. But, as you know, it’s not that easy. Hazards are not always obvious. Sometimes employees make poor choices, despite experience and training. Sometimes something completely unanticipated happens. Maybe another employer created the hazard. Perhaps a piece of equipment broke or malfunctioned. Many things can happen, and this means even an employer with an impeccable safety record and a stellar safety program can (and will) be cited with an IIPP violation because they didn’t prevent the incident. 

 In short, Cal/OSHA has come to use the IIPP regulation as a catch-all, akin to Fed/OSHA’s general duty clause. It operates as a de facto citation, no matter the facts of the case. In fact, it has become an exception to receive a citation package without an IIPP citation. Regardless of the actual language of the regulation, or whether it is a performance standard, or even if there is case law to support the employer’s position, Cal/OSHA will issue the citation and force an employer to defend it, often to great expense, and even more often, without much success.

 Moreover, because the IIPP citation is often issued with a General classification, and a negligible penalty of less than $1,000.00, many employers decide to cut their losses, pay the penalty, and move on. However, that is the beginning of a problematic and potentially dangerous cycle. We will discuss the repercussions of accepting an IIPP citation in Part 2 of this series (coming soon to an inbox near you). 

 In the meantime, stay safe out there, and reach out to our office with any questions. 

Regards,

Lisa Baiocchi

theprincefirm