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California Legislature Takes First Step to Bring Cal/OSHA up to Par: AB 2774 Will Correct Erroneous Definition of Serious Physical Harm

On May 5, the California State Assembly Labor & Employment Committee passed AB 2774.  The legislative proposal was in response to a Federal OSHA letter to the Division of Occupational Safety & Health [Cal/OSHA] and a letter to the Occupational Safety & Health Appeals Board [OSH Appeals Board] criticizing the California program for not meeting federal standards.

Jeremy Smith, representing the California Labor Federation AFL-CIO, and Fran Schreiberg, representing the National Lawyers Guild Labor & Employment Committee, testified urging passage of the bill.  In addition to the California Labor Fed letter and Guild letter, on short notice, several unions submitted letters in support including CWA UPTE and USW.

Letters of support were also sent by the California Applicants’ Attorneys Association, Worksafe and KazanLaw.

Proponents argued that the bill helps Cal/OSHA more effectively prosecute employers who gain an economic advantage from not protecting employee safety and health.  It would level the playing field for legitimate law-abiding businesses.

Bill opponents, including the California Chamber of Commerce and the Associated General Contractors, argued against the bill’s definition of “serious physical harm” and in favor of the current approach which keeps the level of serious citations and penalties low.

The bill will next be heard by the full Assembly.  It must pass the Assembly by Friday, June 4.

Current California statutes do not define “serious physical harm.”  The OSH Appeals Board, which hears appeals by employers who are cited by Cal/OSHA, has equated “serious physical harm” and “serious physical injury,” ignoring guidelines from Federal OSHA.  Because the OSH Appeals Board uses a more restrictive definition, far fewer violations are characterized as “serious.”

California’s rate of serious citations is today the lowest in the countryFederal OSHA reported in November 2009 that Cal/OSHA issued as serious only 19% of its citations.  In contrast, Federal OSHA cited as serious 77% of its citations and the average for other state plans was 43%.

In January, 2010, Federal OSHA informed Cal/OSHA and the OSH Appeals Board that the California state plan was likely not as effective as the Federal OSHA program with respect to the definition of “serious physical harm.”  In a subsequent public forum, the OSH Appeals Board said it would not issue a regulation defining “serious physical harm.”  It further stated that even if the Department of Industrial Relations [DIR], the parent agency for Cal/OSHA, were to issue such a regulation to meet Federal OSHA concerns, it was not obliged to follow that regulation.

Congress, when it passed the Federal Occupational Safety and Health Act in 1970, permitted states to have their own safety and health programs as long as those programs were “as effective as” the Federal plan.  California had a state safety and health program beginning in the early 1900s.  California made statutory changes to assure it could continue to have its own regulations and enforcement program after the federal OSH Act became law.  About half of the states have their own OSH programs (referred to as “state-plan states”).

For Cal/OSHA to continue to be “as effective as” the federal program, it must address Federal OSHA’s criticism.  Endorsement of AB 2774 will be a first step towards addressing this problem.  We need this legislation to force the OSH Appeals Board to use the proper definition of “serious physical harm.”

Click here for a model letter of support to urge members of the legislature to pass AB 2774.  Click here for a fact sheet about the bill.

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