AB2774 – DOSH Writes Its Own New Standard

Cal OSHA is probably rejoicing right now with the announced passage of AB2774. This new bill lowers the burden of proof that was once the biggest hurdle for Cal OSHA to overcome when trying to confirm a “Serious Violation” with the appeals board.

In the past, the employer has had a good opportunity to either beat a serious violation outright, or lessen the degree of the violation because of the relatively high level of burden of proof. The latest Flash Report from Work Comp Executive Magazine describes it like this:

“The core principle of the new law is that a hazard posing a risk of serious physical harm that is unacceptable by modern standards should be treated as a serious violation and penalized accordingly, Welsh says. Under previous rules, the division had the extremely difficult burden of showing that the hazard was 51% likely to cause serious injury or death. But no more …”

They go on to state:

“AB 2774 was born out of DOSH frustrations about the high bar the Cal/OSH Appeals Board has set to establish a serious violation. That bar is now lower. But DOSH Chief Len Welsh says the overall aim of the law is to foster communication between the division and employers to abate and prevent serious hazards. “Those who are paying attention will be rewarded,” he says, but “those who are not may find themselves in trouble.””

In short, the new law makes it much easier for serious violations issued by DOSH through Cal OSHA to survive appeal. They will stick with much greater frequency, and reductions will be much harder to get.

The driving force behind the change in the law is two-fold. Fed OSHA recently completed an audit of Cal-OSHA and found that Cal-OSHA and DOSH were not up to Fed standards on prosecuting these serious violations, and basically called them out on this issue. Also big Labor (namely the UFW) had threatened suit against Cal-OSHA and Dosh for what they believe was their inability to successfully prosecute serious violators.

One thing is for sure – The rules have changed into the government regulators favor, and they were allowed to write their own new standards. This last quote from the Work Comp Executive will probably ring true:

“Get ready for the World Series of serious violations, experts warn.”

If you do not have a sound IIPP, one that is unique to your operation, then you really need to revisit this plan and get one that is up-to-date and specific to your operation. If not, it has just become easier for Cal-OSHA to prosecute you for it. Lack of, or problems with your IIPP can generate up to $5,000 in fines, and serious violations can reach $25,000. Contact me and I can and will help you in this matter.

Guy Teafatiller

guyt@vanbeurden.com

Vice President | Kingsburg