The federal Occupational Safety and Health’s (OSHA) reports on deficiencies in state-run OSHA programs were published in September 2010. Cal/OSHA has been working steadily ever since to address federal OSHA’s criticisms—including a criticism that Cal/OSHA had too narrowly drawn the criteria for “repeat” citations and criticisms of Cal/OSHA’s appeals process.
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Redefining ‘Repeat’ Citations
When Cal/OSHA issues a citation, the agency may classify it as regulatory, general, serious, repeat, or willful. Cal/OSHA has now revised its definition of a repeat citation to make it more consistent with federal OSHA’s definition. The revised definition takes effect January 1, 2017.
Currently, California will cite an employer for a repeat violation if the employer had violated the same standard within 3 years of the date that the previous violation became a final order.
The existing definition of a “repeat violation” includes an establishment/geographic restriction: An employer with fixed work locations can be cited for a repeat violation only at the same establishment, and an employer without fixed work locations (for example, construction employers) can be issued a repeat citation only for violations in the same California region.
To make its definition more consistent with OSHA’s definition, California has expanded the time period over which it will examine an employer’s history, from 3 years to 5 years—a change that federal OSHA made in 2010.
In addition, rather than issuing repeat citations based on the cited Cal/OSHA standard, Cal/OSHA will instead look for violations of “a substantially similar regulatory requirement.” In other words, Cal/OSHA will determine whether a violation is repeat based on the nature of the violation, rather than the cited standard.
Specifically, the agency will look at the type of new violation that occurred, not the standard. If the type is essentially similar to a violation in the previous 5 years, the citation can be issued as a repeat citation even if it was initially cited under a different standard than the previous citation.
For example, if an employer was cited for failure to keep records of its respirator fit testing under the formaldehyde standard (General Industry Safety Orders (GISO) Section 5217(o)(4)) and then found, 2 years later, to be failing to keep records of its fit testing generally (GISO Section 5144(m)(2)), it could be cited for a repeat violation.
Over employers’ objections, California has also removed the establishment and geographic restriction on repeat violations (which had come under specific federal OSHA criticism). Employers with multiple fixed locations can now receive repeat citations based on violations that occurred at other establishments or locations they own. Employers without fixed locations can now be issued repeat citations based on previous citations issued anywhere in the state.
Going Paperless: Cal/OSHA’s Appeals Process
As part of its ongoing efforts to improve and streamline its appeals process, the Occupational Safety and Health Appeals Board (OSHAB) is going (mostly) paperless. OSHAB’s new electronic appeals scheduling and information system (OSHAB Appeals Scheduling and Information System, or OASIS) went live online on October 3, 2016.
Interestingly, employers can’t yet complete Cal/OSHA’s appeals form electronically; that’s coming but at a later date. For now, employers must still download, print, and complete the appeals form. Then they can either scan it as a PDF and upload it to OASIS or mail the form to the Appeals Board, which will scan it in.
After receiving a completed appeals form, the Board will review it for timeliness. Rather than assigning the case a docket number, as done in the past, the Board will use the inspection number as the case number.
Once the appeal is in the system, all documents and information pertaining to the case—in particular, relevant hearing dates and other calendar information—will be available to all parties online. Interested individuals who aren’t parties to the case (for example, employees or family members) can register and view basic information, like calendar information, online.
Employers can upload documents directly to the online system and file for a continuance online. The employer will receive notifications, including notifications of the date of its prehearing telephone conference and its appeal hearing, via e-mail.