Division of Occupational Safety and Health (DOSH) Chief Counsel and prosecutor Amy Martin, yesterday, minced no words when addressing what she says is the part of AB 2774 that employers should put their focus on.
"All people want to talk about is the stupid 1BY form," Martin commented at the 2011 professional development conference of the American Society of Safety Engineers' Sacramento chapter. "Nobody cares about that." Instead, she urged safety professionals to pay close attention to what she says is the "heart" of the 2010 law that changed the way DOSH cites employers for serious violations: the "rebuttable presumption." That's the provision that makes it far easier for Cal/OSHA to cite for a serious violation than under the previous rules.
She also admitted that the much-ballyhooed law isn't written very well. It's a prosecutorial admission every defense attorney will be delighted to hear - and use against DOSH's cases. She went on...
AB 2774 establishes a "rebuttable presumption" that a serious violation exists if DOSH can show a "realistic possibility" that death or serious physical harm could result from the workplace hazard. Under the former California Labor Code definition, a serious violation could only be upheld if DOSH could show a "substantial probability" of death or serious harm from the violation, a bar the Division said was almost impossible to meet.
DOSH has issued more than 1,600 serious violations under the AB 2774 rules in 2011. The cases are winding their way through the process. Many will end up before the Cal/OSH Appeals Board. But Martin urged employers to become very familiar with the new rules:
"You should sit down and read [AB 2774] very carefully," she told the ASSE audience, "Why? Because it's not clear."
The prosecutor noted that the term "realistic possibility" is defined nowhere, and ultimately it will be up to the Appeals Board to decide how it is applied. The phrase was crafted by a coalition of stakeholders, including Cal/OSHA, employer representatives and labor unions. "We made it up," she admitted. The law and language was shepherded through the process by former Chief Len Welsh who negotiated the deal between the stakeholders.
But she also noted that the law codified an "affirmative defense" for employers. An employer may rebut a serious allegation by demonstrating that it did not know and could not have known of the violation with reasonable diligence. It also requires the employer to show it took "all the steps a reasonable and responsible employer in like circumstances should be expected to take."
As for the "stupid" 1BY forms, which DOSH must issue before actually issuing a serious citation, giving the employer a chance to make its case that it doesn't deserve a serious violation, Martin said DOSH does not have data on the percentage of such forms that actually dissuaded Cal/OSHA from serious citations. "I know that communication is happening," though, she said. She disputed allegations from one employer-allied defense attorney that Cal/OSHA inspectors and even district managers are actually are ignoring the form and consider it useless. "They are not ignoring it," Martin said, but not until after she said "nobody cares about it."