Under pressure from labor and OSHA to conform with the federal definition of a “serious violation,” the legislature passed and the governor signed AB 2774 that will take effect on January 1, 2011. Among other things, it establishes a rebuttable presumption that a violation is serious if the division can demonstrate a “realistic possibility” that death or serious physical harm could result from the violation.
The existing threshold, both state and federal, is “substantial probability.” However, the California Occupational Safety & Health Appeals Board has interpreted “substantial probability” to mean over 50% whereas federal courts have articulated a much lower threshold of possibility demonstrated by little more than the violation. In its 2010 audit of Cal/OSHA, OSHA found, “The ‘more likely than not’ construct used by OSHAB is not consistent with the intent of the OSH Act nor the requirements of Section 18 that a State Plan must provide a program of standards and enforcement that is at least as effective as the OSHA program.” Not surprisingly, California went its own way and abandoned the term “substantial probability.”
It remains to be seen how OSHAB will interpret “realistic possibility,” though AB 2774 clarifies that it must result from the actual hazard created by the violation and that the demonstration of a violation is not sufficient to establish that the violation is serious. It also remains to be seen how OSHA will respond to the difference between substantial probability and realistic possibility as interpreted by OSHAB. The extent to which “at least as effective” means “the same” has been a point of contention between OSHA and state plans.
Another contentious difference may be the definition of “serious physical harm,” also amended by AB 2774. OSHA’s Field Operations Manual defines “serious physical harm” as “Impairment of the body in which part of the body is made functionally useless or is substantially reduced in efficiency on or off the job. Such impairment may be permanent or temporary, chronic or acute. Injuries involving such impairment would usually require treatment by a medical doctor or other licensed health care professional.” An early version of AB 2774 would have incorporated the federal definition. The final version defines “serious physical harm” as an injury or illness that results in one of the following:
- Inpatient hospitalization for purposes other than medical observation.
- The loss of any member of the body.
- Any serious degree of permanent disfigurement.
- 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…”
The stakeholders negotiating the definition of a serious violation, also used AB 2774 as a vehicle for process improvement.
Before issuing a citation with alleged violations classified as serious, the Division of Occupational Safety & Health must make a reasonable attempt to assess the employer’s affirmative defenses which include specified measures to prevent the hazard. In effect, the division will provide the employer with “alleged violation descriptions” and give the employer an opportunity to explain why a serious violation does not exist. Employers must decide whether to avail themselves of this opportunity or wait for hearing.
To facilitate division testimony at hearing, engineers and industrial hygienists shall be deemed competent to offer testimony to establish each element of a serious violation if, at the time of hearing, their divisionmandated training is current. They need not qualify as expert witnesses to offer evidence on the custom and practice of injury and illness prevention as it relates to the alleged violation.