close

Вход

Забыли?

вход по аккаунту

?

AB 2774: Understanding the new Cal/OSHA law and how to

код для вставки
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
AB 2774: Understanding the new Cal/OSHA
law and how to minimize its impact
__________
Don Dodson, ARM, CPDM, COSS
Safety & Risk Management
Steve Thompson, ARM, COSS
Safety & Risk Management
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
Webinars and…

Use chat box or question box to ask questions of presenter

If phone line or audio connection becomes problematic, please
re-enter Webinar or if calling in, please hang up and re-enter

We will stay on the line 15 minutes after the session to answer
your questions, or they can be directed to
ddodson@aspenrmg.com

2011 Webinar and Training Calendar
http://www.aspenrmg.com/training.htm
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
Agenda
пѓ�
Background: how did we get here?
пѓ�
New requirements: what does AB 2774 mean?
пѓ�
What can be done to minimize its impact?
пѓ�
Questions and Discussion
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
DISCLAIMERS
1.
Became effective January 1, 2011 so no Court cases to
rely upon for interpretation.
2.
The Division of Occupational Safety & Health (DOSH)
Policy & Procedures Manual has not been updated as
of January 20, 2011. Specific instructions Compliance
Officers will be use to enforce the new law is unknown.
3.
This is a quick overview…
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
Background: How did we get here?

“Let me be clear, there is a new sheriff in town”

“We’ll accomplish this [increased worker
protections] through tough enforcement,
transparency, cooperation and balance”
U. S. Secretary of Labor Hilda Solis told a crowd of a couple hundred Department of
Labor staff, government officials and political supporters at her swearing-in ceremony
Friday, March 13, 2009.
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
Background: How did we get here?
пѓ�
Federal OSHA critical of California’s “delegated
state” plan as being lax on serious violations:
пѓј
пѓј
пѓј
пѓ�
Federal OSHA -> 77% of all citations classified as serious
All State plans -> 43% serious
California -> only 19% serious – lowest
Federal OSHA wants California to significantly
increase violation penalties.
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
Background: How did we get here?
Critics of Cal/OSHA claim far too many citations
issued after serious injuries or fatalities are
reclassified downward to general violations upon
Appeal. This reduces penalties to a maximum of
$7,000 each, but often much less. Serious
violation penalties are up to $25,000 each.
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
Background: How did we get here?
Critics, including many DOSH staff, complain that
the Occupational Safety & Health Appeals Board
(OSHAB) limits the definitions and criteria for
upholding serious violations:
 “serious injury or illness” [LC 6302(h)]
 “substantial probability”
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
Background: How did we get here?
Speaking of OSHAB overturning serious
violation allegations:
“That is impractical, unrealistic and calculated to
make it almost impossible for us to meet our
burden [of proof].”
DOSH Chief Len Welsh
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
“One way to look at it is a complete reboot on
how to approach serious violations in
California. From my point of view, it is a clean
slate. Instead of having that impossible
formula the Appeals Board was forcing on us,
we now have an approach that at least
conceptually comports to a modern concept of
how to approach hazards.”
DOSH Chief Len Welsh
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
“It’s an extremely important change in the law.
It changes a fundamental definition in
classifications. It’s certainly the largest change
in the eight years I’ve been here.”
DOSH Chief Counsel Amy Martin
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�Pre-1/1/2011
Labor Code Section 6432 totally
repealed and replaced with new Section 6432:
Establishes first ever “rebuttable
presumption” in Safety Orders!
 no longer a “level playing field” and no
longer “presumed innocent until proven
guilty”; employer must overcome DOSH’s
“alleged violation descriptions (“AVD”) it
intends to cite as serious.
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�Pre-1/1/2011
Labor Code Section 6432 totally
repealed and replaced with new Section 6432:
“realistic possibility” now replaces old
“substantial probability” (e.g. 51%)
 Who defines “realistic?” DOSH!
 Isn’t anything a “possibility?”
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�Pre-1/1/2011
Labor Code Section 6432 totally
repealed and replaced with new Section 6432:
+ “The demonstration of a violation by the
division is not sufficient by itself to establish
that the violation is serious. The actual
hazard may consist of, among other things:
(1) A serious exposure exceeding an
established permissible exposure limit.”
[emphasis added]
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�Pre-1/1/2011
Labor Code Section 6432 totally
repealed and replaced with new Section 6432:
+ “… The actual hazard may consist of,
among other things:
(2) The existence in the place of
employment of one or more unsafe or
unhealthful practices, means, methods,
operations, or processes that have been
adopted or are in use.” {LC 6432(a)}
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�New
Section 6432(b)(1):
+ “Before issuing a citation alleging that a
violation is serious, the division shall make a
reasonable attempt to determine, among
other things, all of the following:
(A) Training for employees and supervisors
relevant to preventing employee exposure
to the hazard or to similar hazards.”
 How “similar” is “similar?”
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�New
Section 6432(b)(1):
+ “… reasonable attempt to determine,
among other things, all of the following:
(B) Procedures for discovering, controlling
access to, and correcting the hazard or
similar hazards.
 Again, how “similar” is “similar?”
 Likely “cookie cutter” IIPP’s will fail.
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�New
Section 6432(b)(1):
+ “… reasonable attempt to determine,
among other things, all of the following:
(C) Supervision of employees exposed or
potentially exposed to the hazard.
 Does “potentially exposed” mean the next
building, the plant in L.A., another job site?
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�New
Section 6432(b)(1):
+ “… reasonable attempt to determine,
among other things, all of the following:
(D) Procedures for communicating to
employees about the employer’s health
and safety rules and programs.
 CAUTION: “cookie cutter” IIPP’s likely fail.
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�New
Section 6432(b)(1):
+ “… determine, among other things, all of
the following:
(E) Information that the employer wishes to
provide, at any time before citations are issued,
including, any of the following:”
(i) employer’s explanation of circumstances
(ii) why employer believes not a serious violation
(iii) employer belief its actions were “reasonable
and responsible”
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�New
Section 6432(b)(2):
“The division shall satisfy its requirements … in
paragraph 1 [above] if, not less than 15 days prior to
issuing a citation for a serious violation, the division
delivers to the employer a standardized form
containing the alleged violation descriptions (“AVD”)
it intends to cite as serious and clearly soliciting the
information … in this subdivision.”
[emphasis added]
 That’s all they have to do?
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�New
Section 6432(c): “If the division
establishes a presumption … the employer
may rebut … and establish that a violation is
not serious by demonstrating that the
employer did not know and could not, with the
exercise of reasonable diligence, have known
of the presence of the violation.”
 “demonstrating” is not same as stating,
pleading, mentioning or pouting.
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�New
Section 6432(c): “The employer may
accomplish this by demonstrating both of the
following:
(1) “The employer took all the steps a
reasonable and responsible employer in
like circumstances should be expected to
take, before the violation occurred, …”
 miss one “step” you lose!
 “expected to take” is not generally done
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�New
Section 6432(c): “The employer may
accomplish this by demonstrating both of the
following:”
(1) “… to anticipate and prevent the violation,
taking into consideration the severity of harm
that could be expected to occur and the
likelihood of that harm occurring in
connection with the work activity …”
пЃЌ Evidence of failure are injuries or illness.
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�New
Section 6432(c): “The employer may
accomplish this by demonstrating both of the
following:” [and]
(2) “The employer took effective action to
eliminate employee exposure to the hazard
created by the violation as soon as the
violation was discovered.”
пЃ‹ Preserve evidence and effectively exclude
any further exposure.
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�New
Section 6432(d): “If the employer does
not provide information in response to a
division inquiry made pursuant to subdivision
(b), the employer shall not be barred from
presenting that information at the hearing and
no negative inference shall be drawn.”
пЃЉ
Sounds nice …
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�New
Section 6432(d): “… The employer may
offer different information at the hearing than
what was provided to the division and may
explain any inconsistency, but the trier of fact
may draw a negative inference from the
prior inconsistent factual information.”
[emphasis added]
пЃЌпЃЌ WOW! Potentially gone are the several
months to prepare your Appeal!
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�New
Section 6432(e): “�Serious physical
harm,’ as used in this part, means any injury
or illness, specific or cumulative, occurring in
the place of employment or in connection with
any employment, that results in any of the
following:”
[emphasis added]
пЃЌRemember, complaints of limiting definition to
old “serious injury or illness” test.
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�New
Section 6432(e): “… that results in any
of the following:
(1) Inpatient hospitalization for purposes
other than medical observation.”
 No longer “in excess of 24 hours” and
maybe for “future medical care” years later.
“(2) The loss of any member of the body.”
пЃЌ How about removing herniated discs?
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�New
Section 6432(e): “… that results in any
of the following:
(3) Any serious degree of permanent
disfigurement.
(4) Impairment sufficient to cause a part of
the body or the function of an organ to
become permanently and significantly
reduced in efficiency on or off the job, …”
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�New
Section 6432(e): “… that results in any
of the following:
(4) “ … including but not limited to, depending
on the severity, second-degree or worse
burns, crushing injuries … respiratory
illnesses, or broken bones.”
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�New
Section 6432(f): “Serious physical harm
may be caused by a single, repetitive practice,
means, method, operation, or process.”
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пѓ�New
Section 6432(g) {whew, finally}: “A
division safety engineer or industrial hygienist
who can demonstrate, at the time of the
hearing, that his or her division-mandated
training is current shall be deemed competent
to offer testimony to establish each element of
a serious violation, and may offer evidence on
the custom and practice of injury and illness
prevention in the workplace that is relevant …”
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
“For those in the employer community who are not
paying attention, they may be losing tremendous
opportunities to work with DOSH even in an
enforcement setting to make sure they get a proper
result. … Those who are in a position of strength,
having done their homework and paid attention to the
inspection, and knowing their operation better than
DOSH, can bring facts to our attention that we may
have missed.”
DOSH Chief Len Welsh
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
New Requirements: What does AB
2774 mean?
пЃЌ Remember: once a serious violation is
issued, it is a permanent black mark on an
employer’s safety record, regardless of the
outcome of the case.
“It’s
in IMIS [the federal Integrated Management Information
Service] forever and it can’t be removed. … Employers don’t like
that and I don’t blame them. What this does is give employers an
opportunity to dialogue with Cal/OSHA and challenge what we
think we found in terms of serious violations, and persuade us
that perhaps we’re not correct.” DOSH Chief Len Welsh
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
What can be done to minimize its
impact?
пѓ�Document,
document, document; then
document the process of documentation!
�“No longer will those cheap and canned IIPPs
be acceptable. An incomplete or amateur IIPP
can generate as much as a $5000 fine for an
employer. And employers are starting to
realize they can come back against brokers’
E&O for the fine and legal expenses if the
broker provides it and a ticket is generated.”
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
What can be done to minimize its
impact?
пѓ�Employers
must be able to “demonstrate” that
they “are paying attention” (DOSH Chief Len Walsh)
�Defense expert Kevin Bland, Esq. says, “But
you should be alarmed if you only have a
paper safety program that doesn’t have any
teeth. … By applying the �realistic probability’
standard, we as employers get to assert an
affirmative defense.”
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
What can be done to minimize its
impact?
�“An
employer can argue that because of its
safety and training programs, it would be
highly unusual that an incident would occur as
the result of a violation. Or if there were an
incident that led to an investigation, the
employer could assert that it was an isolated
incident because the firm’s safety program is
robust.”
Workers’ Comp Executive, Kevin Thompson
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
What can be done to minimize its
impact?
пѓ�Likely
the number of citations for serious violations will
increase, in part because of expanded definition of
“serious physical harm” and change from “substantial
probability” to “a realistic possibility that death or
serious physical harm could result from the actual
hazard created by the violation.”
�Key words are “anticipate,” “prevent” and eliminate
employee exposures.
Paul, Hastings, Janofsky & Walker, LLP
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
Additional Resources
1. Cal-OSHA ReporterВ® Webinar
January 26, 2011 at 10:00 A.M. PST
Call 916-774-4000 or online
$139.00 per “site license”
2. Googleв„ў, Bingв„ў Yahooв„ў, etc. search
AB2774, “AB 2774” and “Labor Code 6432”
3. Your insurance broker and carrier
4. Cal/OSHA Consultation Service
пЃЌ NOT same as DOSH Enforcement!!!
5. Consultants пЃЉ
Aspen Risk
AspenManagement
Risk ManagementGroup
Group
Questions and Discussion
Thank you very much!
Donald E. Dodson, ARM, CPDM
ddodson@aspenrmg.com
Steve Thompson, ARM, COSS
Aspen Risk Management Group
Web: www.aspenrmg.com
Phone: (619) 294-9863
2011 Webinar and Training Calendar
http://www.aspenrmg.com/training.htm
Документ
Категория
Без категории
Просмотров
8
Размер файла
147 Кб
Теги
1/--страниц
Пожаловаться на содержимое документа