California employers will soon have to prove, under penalty of perjury, that workplace safety and health hazards have been corrected before receiving any penalty modifications, and even while they are contesting the citations in an appeals process.
Governor Jerry Brown signed A.B. 1634 into law on Sept. 20, 2014.
The new law also requires employers to fix the most serious hazards cited by the California Division of Occupational Safety and Health (Cal/OSHA) more promptly, and allows employers to delay correcting a cited hazard only during a first appeal.
California operates its own state occupational safety and health plan, and the new law applies only to California operations.
When the law takes effect on Jan. 1, 2015, Cal/OSHA will be prohibited, in the case of serious violations, from lessening civil penalties for fixing hazards (abatement) or giving financial credit for abatement unless the employer has done one of the following three things:
- Abated the violation at the time of the initial inspection.
- Abated the violation at the time of a subsequent inspection prior to the issuance of a citation.
- Submitted a signed statement under penalty of perjury with supporting evidence to show the violation has been abated within 10 working days of the abatement deadline.
Cal/OSHA will assess additional civil penalties for failure to abate, and will conduct a re-inspection of serious violations within 45 days if employers do not produce the signed statement and evidence of abatement within 10 working days of the deadline.
Currently, all abatement is stayed while employers appeal citations with the Cal/OSHA Appeals Board.
In addition, Cal/OSHA “automatically grants a reduction in the penalty amount, called an ‘abatement credit,’ whether or not the employer abates the citation by the abatement date,” said Assemblymember Nancy Skinner, D-Berkeley, the law’s sponsor.
The state labor code provides employers the opportunity to challenge any citation, and the automatic stay protects an employer from the expense of implementing changes to its operations that ultimately are not required if the citation is successfully appealed. According to the Cal/OSHA Appeals Board itself, most employers voluntarily abate as ordered in a citation because doing so allows for a 50 percent reduction in the proposed penalty.
“In practice, many employers use the appeals process to delay abatement,” Skinner asserted. “Appeals can last for months or years after the original citation is issued. If the employer loses the appeal, a second appeal may be pursued, allowing further continuance of the hazardous condition. This loophole allows dangerous working conditions to persist long after hazards have been identified,” she said.
Under the new law, in the case of serious, repeat serious, or willful violations, an employer’s second appeal, known as a reconsideration, will no longer stay the requirement to abate the hazards unless the employer can demonstrate that a stay will not adversely affect the health and safety of employees. The employer must request a stay of abatement by filing a written, verified petition with supporting declarations to the appeals board within 10 days after the issuance of the order or decision.
The law “ensures that unsafe conditions in the workplace get corrected in a timely manner and puts employee safety first,” said Skinner.
Roy Maurer is an online editor/manager for SHRM.
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