HR and Workplace Safety: California
Federal law and guidance on this subject should be reviewed together with this section.
Author: Leanne Coffman
- California is a State Plan state. See Cal/OSHA.
- The California Occupational Safety and Health Program, generally referred to as Cal/OSHA, has several independent divisions aimed at promoting and ensuring a safe working environment. See Divisions under Cal/OSHA.
- Cal/OSHA has numerous compliance programs and requirements. See Compliance Requirements.
- California has its own recordkeeping requirements for work-related injuries and illnesses. See Recordkeeping Requirements.
- California requires all employers to report an employee fatality or serious injury or illness. See Reporting Requirements.
- Cal/OSHA has its own posting requirements. See Cal/OSHA Postings.
- California drivers are generally prohibited from holding and operating a handheld electronic wireless communications device. See Driving Policies.
- Sacramento has requirements pertaining to the safety of hotel workers. See Local Requirements.
California is a State Plan state. The California Occupational Safety and Health Program is generally referred to as the Cal/OSHA Program. It is administered by the Department of Industrial Relations. The chief executor of the plan, responsible for enforcement and consultation, is the Division of Occupational Safety and Health (DOSH), also known as Cal/OSHA.
All employers, both public and private sector, fall under the jurisdiction of Cal/OSHA and the California Occupational Safety and Health Act (Cal/OSH Act), with the exception of federal employees, private sector employees on Native American tribal lands, the United States Postal Service (USPS) and maritime activities on the navigable waterways of the United States. Exceptions in jurisdiction are also made for private contractors working solely on federally designated land and for employees operating under federal security clearances.
Divisions under Cal/OSHA
Under the Cal/OSHA Program, several independent divisions share the central goal of ensuring a safe and healthful working environment for all workers in California:
- The Occupational Safety and Health Standards Board;
- The Division of Occupational Safety and Health (DOSH);
- The Occupational Safety and Health Appeals Board;
- The DOSH Consultation Service; and
- Division of Labor Standards Enforcement.
Occupational Safety and Health Standards Board. The function of the Occupational Safety and Health Standards Board is to create standards for safety and health that are "reasonable and enforceable." All Cal/OSHA standards must be at least as effective as federal OSHA standards, but the Board may elect to create more stringent standards for the state.
Representation on the board comes from various areas pertinent to the welfare of labor, including representatives from management, labor, occupational health (or industrial hygiene), occupational safety and the general public. The seven members of the Board are each appointed by the governor.
Reviewing variances, which allow for changes in applications of standards for a specific industry, workplace or type of job duty, is also a function of the California Occupational Safety and Health Standards Board. The Board has the authority to grant or deny applications for variances.
The Board also responds to petitions for novel or revised standards.
In California, this is the sole agency permitted to create, amend or repeal occupational safety and health standards and orders. Certain industries and activities not covered under federal regulations are also maintained by standards from the Occupational Safety and Health Standards Board.
Among the unique areas regulated by the Occupational Safety and Health Standards Board include:
- Aerial passenger tramways;
- Amusement rides;
- Pressure vessels; and
- Mine safety training.
When rulemaking is necessary, the proposed standards are scheduled for the Board in monthly public hearings. The hearings are conducted in major cities such as Sacramento, Oakland, San Diego or Los Angeles.
Division of Occupational Safety and Health. One of the primary responsibilities of The Division of Occupational Safety and Health (DOSH) is enforcement of Cal/OSHA standards. The Cal/OSHA Enforcement Unit is responsible for conducting inspections of workplaces under the jurisdiction of the Cal/OSHA Program throughout the state.
If DOSH learns or has reason to believe that a place of employment is not safe or is injurious to the welfare of an employee, it may investigate the place of employment, with or without notice or hearings. However, if DOSH receives a complaint from an employee, an employee's representative, including, but not limited to, an attorney, health or safety professional, or union representative, that their employment or place of employment is not safe, it will, with or without notice or hearing, investigate the complaint as soon as possible, but not later than three working days after receipt of a complaint charging a serious violation, and not later than 14 calendar days after receipt of a complaint charging a nonserious violation. A complaint is deemed to allege a serious violation if there is a substantial probability that death or serious physical harm could result from a condition that exists. See Future Developments.
Occupational Safety and Health Appeals Board. Appointed by the governor, a three-member judicial body comprises the Appeals Board. A member of management, as well as a labor representative and a member of the general public, serve on the Board under state statute.
Resolving appeals in a fair, timely and efficient method is the objective of the Board. The Appeals Board also strives to promote workplace safety and health across the state, by providing comprehensive and continual guidance to the public.
DOSH Consultation Service. Cal/OSHA maintains an active consultation service for employers, which offers information and training on a variety of pertinent safety and health topics through publications, website information and regional events.
The DOSH Consultation Service also provides onsite visits, technical assistance and hazard assessment for all employers in California. All DOSH Consultation Services are free of charge. Consultants do not assess fines or citations.
DOSH Consultation Service offices are located in several cities throughout the state.
Division of Labor Standards Enforcement. The Division of Labor Standards Enforcement (DLSE) investigates allegations of retaliation against employees who complain about safety or health conditions or practices or who refuse to perform work that would violate a safety or health standard, if claims are filed within a given time frame following the adverse employment action.
Time frames for filing allegations of retaliation range from 90 days after the adverse employment action to up to two years for some types of Labor Code complaints. However, in general, the DLSE requires complaints to be filed within six months of the adverse employment action.
The DLSE also enforces California's minimum labor standards, including:
- Recordkeeping requirements;
- Rest and meal period requirements;
- Child labor laws; and
- Workplace discriminatory retaliation practices.
Informal Conferences and Appeals. An employer that has been issued a citation or notification may participate in an informal conference to discuss the proposed violation or penalty. To request an informal conference, the employer should contact the Cal/OSHA Area Office that issued the citation.
If an employer wishes to dispute or appeal a citation or other special order, it must file a notification with the Occupational Safety and Health Appeals Board within 15 working days of receiving one of these documents. Upon reviewing the employer's notification, the Board will respond by setting dates for the appeals hearing and pre-hearing phone conference.
High hazard industries list and high hazard unit program. The state operates a targeted inspection and consultation program that monitors, assists and inspects employers presenting with a high number of nonfatal lost time incidents. The state has two approaches for high hazard employers:
- Agents from the consultation program may contact the High Hazard Unit to assist with implementing methods to reduce accidents or incidents.
- The employer may be subject to inspection by agents from the Cal/OSHA High Hazard Unit.
Voluntary protection programs. Cal/OSHA essentially pioneered the voluntary protection program (VPP) for the nation. The California Voluntary Protection Program Star (Cal/VPP Star) is a structured, top-level program the state utilizes to recognize and assist businesses that have achieved exemplary safety in the workplace.
In addition to the General Industry VPP for fixed sites, the state also sponsors the Cal/VPP Construction Program, which applies to employers with nonfixed worksites.
Exemptions for programmed inspections are offered for Cal/VPP workplaces.
Through Cal/OSHA, other programs similar to VPP are offered for employers in high hazard industries that are committed to workplace safety and health. Cal/SHARP (Safety and Health Achievement Recognition Program) functions as a mid-level program that may offer a qualifying employer exemptions from programmed inspections. SHARP applies to fixed and mobile worksites.
Golden Gate, a voluntary compliance program offered by Cal/OSHA, is similar to SHARP, but is targeted for small employers in high-hazard industries. The site-specific program does provide recognition to a qualifying employer, but it does not provide relief from programmed inspections.
Cal/OSHA is one of the most active state plans in the nation. Although the majority of federal OSHA regulations have been adopted into the Cal/OSHA safety orders without modifications in content, numerous unique variances exist within the state plan.
Under terms of the federal OSH Act, state plan laws must be at least as effective as federal standards, but may offer greater protections, such as protection where no federal standard exists.
Cal/OSHA regulations that are different from federal OSHA regulations are called Safety Orders.
Injury and Illness Prevention Program (IIPP). Every employer in California is required to develop, implement and maintain a written Injury and Illness Prevention Program (IIPP). +8 CCR 3203.
An IIPP does not replace other required written programs rather is an additional element in California workplaces to reduce accidents, improve morale and achieve a more healthful and safe environment.
California requires eight elements in the program:
- Assignment of responsibility for program implementation;
- Compliance with standards;
- Communication to employees of hazards and the program elements;
- Hazard assessment of the workplace, job duties and processes;
- Accident/exposure investigation;
- Hazard correction and abatement;
- Training and instruction provided to employees; and
Some workplaces do not have to document all eight elements. Workplaces with fewer than 20 employees in a calendar year, which are not on a high hazard list and have a low Workers' Compensation Experience Modification Rate (ExMod 1.1% or lower), may limit IIPP documentation to the following:
- Assignment of responsibility;
- Schedule of periodic assessments for hazard assessment and correction; and
- Training and instruction.
Employers must provide training:
- When the IIPP is first established;
- To all new hires;
- To all employees given new job assignments for which training has not previously been received;
- Whenever a new substance, process, procedure or piece of equipment is introduced to the workplace and represents a new hazard;
- Whenever the employer is made aware of a new or previously unrecognized hazard; and
- For supervisors to familiarize themselves with the safety and health hazards to which employees may be exposed.
Hazard Communication (HAZCOM) program standard. Pursuant to the Hazardous Substances Information and Training Act, the HAZCOM standard requires every employer to provide information to their employees about the hazardous chemicals to which they may be exposed under normal circumstances of use or in a reasonably foreseeable emergency. An employer must do this with a communication program, labels and other forms of warning, safety data sheets, and employee information and training. In addition, this standard requires distributors to transmit the required information to employers. +8 CCR 5194.
Under the standard, an employer must develop, implement and maintain at the workplace a written HAZCOM program for their employees that describes how it meets the requirements relating to the forms of warnings, safety data sheets and employee information and training. The written program must include the following:
- A list of hazardous chemicals present, using a product identifier that is referenced on the appropriate safety data sheet; and
- The methods the employer will use to inform employees of the hazards of nonroutine tasks and the hazards associated with chemicals contained in unlabeled pipes in their work areas.
Employers must provide the written HAZCOM program, upon request, to employees, their designated representatives and the National Institute for Occupational Safety and Health.
Under the HAZCOM standard, employers must also:
- Ensure that any labels on incoming containers of hazardous chemicals are not removed or defaced;
- Maintain copies of any safety data sheets that are received with incoming shipments of the sealed containers of hazardous chemicals;
- Obtain a safety data sheet for sealed containers of hazardous chemicals received without a safety data sheet if an employee requests the sheet; and
- Ensure that the safety data sheets are readily accessible during each work shift to employees when they are in their work area(s).
With respect to safety data sheets, employers must also ensure they have the required elements. Labels must also include certain details such as pictograms, signal words and hazard and precautionary statements.
As to the information and training provided to employees, employers are required to address the hazardous chemicals in their work area at the time of their initial assignment or whenever a new chemical hazard is introduced into the work area. The information and training must also consist of at least the following topics:
- Information of any operations in their work area where hazardous chemicals are present;
- The location and availability of the written HAZCOM program, including the list(s) of hazardous chemicals and safety data sheets;
- Methods and observations that may be used to detect the presence or release of a hazardous chemical in the work area, e.g., monitoring conducted by the employer, visual appearance or odor of hazardous chemicals being released;
- The physical, health, simple asphyxiation, combustible dust and pyrophoric gas hazards, as well as hazards not otherwise classified, of the chemicals in the work area;
- Measures employees can take to protect themselves from these hazards, including specific procedures the employer has implemented to protect employees from exposure to hazardous chemicals, e.g., appropriate work practices, emergency procedures and personal protective equipment to be used; and
- Details of the HAZCOM program, including an explanation of the labels received on shipped containers and the workplace labeling system used by the employer and the safety data sheet, and how employees can obtain and use the appropriate hazard information.
Employers must also inform employees of the following rights:
- The right to personally receive information regarding hazardous chemicals to which they may be exposed;
- The right of their physician or collective bargaining agent to receive information regarding hazardous chemicals to which the employee may be exposed; and
- The prohibition against termination or other discrimination due to the employee's exercise of rights under the Hazardous Substances Information and Training Act.
Whenever the employer receives a new or revised safety data sheet, it must provide the information to employees on a timely basis not to exceed 30 days after receipt, if the new information indicates significantly increased risks to, or measures necessary to protect, employee health as compared to those stated on a safety data sheet previously provided.
Ergonomics (repetitive motion injuries) standard. California is one of the only states in the nation to have adopted a workplace ergonomics standard. +8 CCR 5110. The goal of the California standard is to reduce or prevent repetitive motion injuries (RMIs) and to enhance the overall safety of the workplace.
Cal/OSHA requires an employer to implement an RMI/ergonomics program when:
- More than one employee suffers a repetitive motion injury;
- The employees incurring the RMI was performing a job, process or operation of identical work activity, i.e., performance of the same repetitive motion, such as word processing or assembly;
- A licensed physician identifies and diagnoses the injury as a musculoskeletal injury; and
- The employees reported the RMI in the last 12 months.
The program must include the following three elements:
- An evaluation of each job, process or operation that has caused RMIs at the workplace;
- Feasible controls to minimize or limit the exposures to ergonomic hazards (such as administrative or engineering controls); and
- Training for affected employees on the following:
- The program;
- The exposures that have been associated with RMIs;
- The symptoms and consequences of injuries caused by repetitive motion;
- The importance of reporting symptoms and injuries to the employer; and
- Methods used by the employer to minimize RMIs.
Ergonomic standard for hotel housekeepers. California has an ergonomic standard applicable to hotel housekeepers. +8 CCR 3345. An employer in the hotel and lodging industry must establish, implement and maintain an effective Musculoskeletal Injury Prevention Program (MIPP). The MIPP must include:
- Names or job titles of the individuals with authority and responsibility for implementing the MIPP at each worksite;
- A system for ensuring that supervisors and housekeepers comply with the MIPP, follow the employer's safe workplace housecleaning practices and use the appropriate housekeeping tools or equipment (e.g., employee recognition, training and retraining programs, disciplinary action);
- A system for communicating with housekeepers on occupational safety and health matters, including provisions designed to encourage housekeepers to inform the employer of worksite hazards and injuries or symptoms that may be related to such hazards, without fear of reprisal;
- Procedures for identifying and evaluating housekeeping hazards through worksite evaluations;
- Procedures to investigate musculoskeletal injuries to housekeepers;
- Methods or procedures to timely correct identified hazards; and
- Procedures for reviewing the effectiveness of the MIPP at each worksite at least annually.
The standard includes housekeeper and supervisor training and employer recordkeeping requirements.
Employers must display the California Preventing Musculoskeletal Injuries in Housekeepers Poster in an area frequented by employees where posters may be easily read during the workday.
Heat illness prevention standard. The Cal/OSHA Heat Illness Prevention standard applies to all outdoor places of employment. +8 CCR 3395. The standard applies to the following industries:
- Oil and gas extraction; and
- Transportation or delivery of agricultural products, construction materials or other heavy materials (e.g., furniture, lumber, freight, cargo, cabinets, industrial or commercial materials), except for employment that consists of operating an air-conditioned vehicle and does not include loading or unloading.
The standard requires an employer to:
- Provide ample potable drinking water (at least one quart per employee per hour) for free. The water must be located as close as practicable to where employees are working, and it must be fresh, pure and suitably cool;
- Provide access to shade (blockage of direct sunlight) at all times when the temperature exceeds 80 degrees, or in a timely manner upon an employee's request when the temperature does not exceed 80 degrees;
- Implement high-heat procedures when the temperature equals or exceeds 95 degrees, e.g., ensure effective communication between supervisors and employees, monitor employees for alertness and signs of heat illness and remind employees to drink plenty of water;
- Encourage and allow employees to take a preventative break in the shade to cool down and avoid overheating An employer must allow at least a five-minute rest period and must monitor for and ask the employee about signs of heat illness;
- Provide appropriate first aid or emergency response to an employee who exhibits signs or reports symptoms of heat illness;
- Implement effective emergency response procedures, including ensuring an employee is able to contact a supervisor or emergency medical services when necessary;
- Acclimate employees gradually to the heat. An employer must closely observe all employees during a heat wave and new employees during their first 14 days of work;
- Train employees and supervisors before performing work that should reasonably be anticipated to result in exposure to the risk of heat illness; and
- Implement and maintain a Heat Illness Prevention Plan, which may be included in the IIPP.
The Heat Illness Prevention Plan must be in writing in both English and the language understood by the majority of the employees. It must be made available at the worksite to employees and to DOSH representatives upon request.
The Heat Illness Prevention Plan must, at a minimum, contain:
- Procedures for the provision of water and access to shade;
- High-heat procedures;
- Emergency response procedures; and
- Acclimatization methods and procedures.
Cal/OSHA routinely inspects and assesses an affected employer's heat illness prevention program.
Permissible exposure limits. The state has strict standards for limiting or decreasing the allowed workplace exposure to numerous air contaminants.
For example, exposure levels to acetone - a very common industrial chemical solvent - are more strictly regulated by Cal/OSHA than many other states. The California Permissible Exposure Limit (PEL) for an eight-hour time weighted average is half (500ppm) that of the federal PEL (1000ppm). Many of the California PELs are based upon the American Conference of Governmental Industrial Hygienists (ACGIH) threshold limit values (TLVs), which reflect current scientific and toxicological information.
Other common chemicals with enhanced California PELs include:
- Beryllium and beryllium compounds;
- Aniline; and
A complete list of air contaminants with specific Safety Orders or exposure limits may be found in Article 107: Dusts, Fumes, Mists, Vapors and Gases: Section 5155, Air Contaminants.
Cleaning Product Right to Know Act. Under the Cleaning Product Right to Know Act, a manufacturer of designated cleaning products must disclose the chemicals in the products and prepare product safety data sheets. +Cal Health & Saf Code § 108950. Employers that have designated cleaning products in their workplace must obtain the information from the manufacturer to prepare the sheets.
Under the Act, manufacturer means either of the following:
- A person or entity who manufactures the designated product and whose name appears on the product label; or
- A person or entity for whom the product is manufactured or by whom the product is distributed, as identified on the product label according to the federal Fair Packaging and Labeling Act.
The Act defines designated product as a finished product that is used primarily for janitorial, domestic or institutional cleaning purposes, including:
- An air care product;
- An automotive product;
- A general cleaning product; or
- A polish or floor maintenance product.
It does not include food, drugs, cosmetics or personal care items; industrial products; and trial samples of designated products that are not packaged for individual sale. +Cal Health & Saf Code § 108952.
An employer must make the following information available:
- A list of certain intentionally added ingredients and nonfunctional constituents, including their Chemical Abstracts Service (CAS) number;
- The functional purpose served by each intentionally added ingredient listed; and
- Certain fragrance ingredients and allergens.
Other important Cal/OSHA standards. The following are additional standards under Cal/OSHA:
- Control of Employee Exposure to Concrete and Masonry Dust (including silica);
- Washing Facilities at Construction Jobsites;
- Notification to the Division of Lead-Related Work;
- Hand Weeding, Hand Thinning, and Hand Hot Capping Operations in Agriculture;
- Ventilation Requirements for Laboratory-Type Hood Operations;
- Confined Spaces;
- Bloodborne Pathogen amendments (including Needlestick provisions);
- Aerosol Transmissible Disease;
- Zoonotics; and
- High Rise Window Cleaning.
Additional enforcement concerns. Based upon current industry or accident trends, Cal/OSHA may produce new emphasis programs and programs. Other areas (listed below) are active programs that California maintains on a regular basis.
Process safety management. The systematic approach to control or prevent catastrophes and chemical exposures caused by highly hazardous chemicals is covered by the Process Safety Management (PSM) standards. In keeping with California's focus on preventing injuries and illnesses resulting from hazardous chemicals, PSM is of special emphasis in the state.
Two Cal/OSHA offices are dedicated completely to PSM. Cal/OSHA inspectors routinely review facilities under the PSM standards, respond to complaints, verify the effectiveness of an employer's programs and investigate releases, fires and explosions.
Outreach and education about hazardous chemicals and chemical processes are also conducted by these offices.
Mining and tunneling. While the federal Mine Safety and Health Administration (MSHA) covers mining and tunneling, Cal/OSHA has authority over other aspects of operations related to these industries. Cal/OSHA standards apply to ladder way openings, fall protection and certification of crane operators.
Tunnel safety is strictly enforced and regulated in California, with Cal/OSHA requiring a state-certified gas tester and safety representative at the site when performing this process. Mandatory compliance inspections must occur every two months while tunnel construction is occurring.
Economic and Employment Enforcement Coalition. Targeted industries in California, known for employing low wage or vulnerable workers (such as immigrants, children and economically disadvantaged employees), are subject to enforcement sweeps by the Economic and Employment Enforcement Coalition (EEEC).
The EEEC monitors, cites and penalizes employers that deal with workers in unscrupulous or unlawful ways, such as an employer providing unsafe working conditions, failing to carry workers' compensation insurance or paying less than the minimum wage.
California employers with more than 10 employees must create and maintain records of work-related injuries and illnesses occurring on the employer's premises and other locations where employees are engaged in work-related activities or are present as a condition of their employment. Employers with 10 or fewer employees and in certain low-hazard industries are exempt and, therefore, are not required to maintain these records.
California generally follows federal recordkeeping requirements. However, California employers must use Cal/OSHA Forms 300, 300A and 301, which are almost identical in form and function to OSHA's.
An incident is considered to be a work-related injury or illness, and therefore must be recorded, if it results in one or more of the following:
- Days away from work;
- Restricted work or transfer beyond first aid;
- Loss of consciousness; and
- A significant injury or illness diagnosed by a physician or other licensed care professional.
Cal/OSHA Forms 300 and 301. In the event a work-related injury or illness occurs, an employer must record the following information on the Injury and Illness Incident Report - Form 301 (Cal/OSHA Form 301):
- The employee's full name, home street address, date of birth, date hired, gender;
- The name of the physician or other health care professional who treated the employee, address where employee received treatment (if applicable), whether employee was treated in the emergency room or hospitalized;
- Case information, including the following:
- Case number;
- Date of injury or illness;
- Time employee began work;
- Time of the event or indication that the time cannot be determined;
- Description of what the employee was doing just before the incident;
- Description of the incident - how the injury/illness occurred;
- The specific injury/illness, part(s) of the body affected, and medical diagnosis, if available;
- The object or substance that directly harmed the employee; and
- If the employee died, the date of death; and
- Name, title and phone number of the person who completed the form.
An employer must record an incident within seven calendar days of receiving information of the occurrence.
At times, an employer may need to determine whether to omit certain information. For example, at the employee's request, an employer may omit the employee's name and insert the phrase "privacy case" if the injury involves an intimate body part or the reproductive system, an incidence of sexual assault, mental illness, infection with HIV, tuberculosis or hepatitis, and other injuries or illnesses. Keep a separate log that identifies the employee by case number. Note that an employer must be able to produce this separate log, also known as a privacy case list, upon Cal/OSHA request.
Once an incident is recorded on Cal/OSHA Form 301, the information must then be transferred to the Work-Related Injuries and Illnesses Log - Form 300 (Cal/OSHA Form 300). An employer must then update the Cal/OSHA Form 301 and Cal/OSHA Form 300 as the nature of the injury or illness and its consequences become known.
When providing copies of Cal/OSHA Form 301 (or equivalent forms) to authorized representatives, the following personally identifying information must be deleted:
- Employee's name, address, date of birth, gender and date of hire;
- Physician's name;
- Location where treatment was provided;
- Whether the employee was treated in an emergency room; and
- Whether the employee was hospitalized overnight as an in-patient.
An employer should keep separate records for each worksite.
Cal/OSHA Form 300A. Each year, California employers must prepare and post a Summary of Work-Related Injuries and Illnesses - Form 300A (Cal/OSHA Form 300A), which is a summary of the work-related injuries and illnesses that occurred and recorded during a calendar year and is based on the data on Cal/OSHA Form 300. Therefore, an employer should verify that the entries on Cal/OSHA Form 300 are complete and accurate, and correct any deficiencies before transferring the data to Cal/OSHA Form 300A.
An employer must also post Cal/OSHA Form 300A from February 1 to April 30 of the year following the year covered by the form in a conspicuous place where workplace posters are typically placed.
The Cal/OSHA Form 300A must be provided or mailed to employees who do not normally report at least weekly to a location where this annual summary is posted and who receive pay during the February through April posting period. An employer need not post the annual summary for an establishment where operations have closed down during the calendar year.
Employers with multiple establishments must prepare a separate Cal/OSHA Form 300A. Each form must be certified by an owner, a corporate officer, the highest person or his or her supervisor at the establishment.
An employer must also provide copies of the annual summary to employees, former employees, personal representatives or authorized representatives by the end of the next business day. Establishments in SIC Code 781 have seven calendar days.
To ensure timely availability of records kept at a headquarters or other central locations to employees, their representatives and government representatives, an employer must have at each worksite the address and telephone number of the location where records are kept. In addition, personnel must be available during normal business hours at the location were records are kept to transmit information from the records.
It is unlawful for an employer to terminate or discriminate against an employee for requesting access to a work-related injury or illness report.
Maintenance of injury and illness records. Employers must keep the following records for five years following the end of the calendar year that these records cover:
- Work-Related Injuries and Illness Log - Cal/OSHA Form 300;
- Injury and Illness Incident Report - Cal/OSHA Form 301;
- Summary of Work-Related Injuries and Illnesses - Cal/OSHA Form 300A; and
- The privacy case list, if one exists that particular year.
During the five-year period, an employer must update the stored Cal/OSHA Form 300 to include newly discovered recordable injuries and illnesses and to show any changes that have occurred in the classification of previously recorded injuries and illnesses. If the description or outcome of a case changes, an employer must remove or strike out the original entry and enter new information.
An employer does not need to update Cal/OSHA Form 300A or 301 but it may if it wishes to do so.
Cal/OSHA may cite an employer for failure to record a work-related injury or illness until one of the following occurs:
- The recordkeeping violation is corrected;
- Cal/OSHA discovers the violation; or
- The end of the five-year recordkeeping retention period.
- Establishments with 250 or more employees (full-time, part-time, seasonal, and temporary workers) unless exempted by law;
- Establishment with 20 or more but fewer than 250 employees in certain enumerated industries;
- Employers who are requested by Cal/OSHA to do so.
Employers must electronically submit Form 300A by March 2 of the year after the calendar year covered by the form. For example, Form 300A including 2018 information must be electronically submitted by March 2, 2019.
The electronic submission requirements are similar to those mandated by Federal OSHA.
Cal/OSHA requires all employers, regardless of size, to report any employee fatality or serious injury or illness to the nearest district office immediately or within eight hours of learning of the event. See Future Developments.
Cal/OSHA defines a serious injury or illness as a condition that:
- Results in death;
- Requires more than 24 hours of hospitalization for other than observational purposes;
- Involves loss of any member of the body, which is defined as loss of bone (such as an amputation); or
- Results in permanent disfigurement.
See Future Developments.
In the event of a fatality or serious injury or illness, an employer should take the following steps:
- Prepare an incident report and include the following information:
- Time and date of the reportable incident;
- Name, address and telephone number of the organization;
- Name and job title of the person reporting the incident;
- Address/location of the incident site;
- Name of the person to contact at the incident site;
- For the injured employee(s):
- Name and address;
- Nature of the injury; and
- Location to which the injured employee was moved;
- Identity of other law enforcement agencies and personnel present at the incident site;
- A description of the incident; and
- If the incident scene or equipment that caused the incident was altered.
- Submit the report to Cal/OSHA no later than eight hours after the incident occurs or eight hours after a death occurs, regardless of the time elapsed between the incident and the death.
Note that an employer is prohibited from terminating or in any manner discriminating against an employee who reports a work-related fatality, injury or illness; requests access to occupational injury or illness reports and records; or exercises other rights protected by the federal OSH Act.
The Cal/OSHA Program issues its own safety and health posters, which must be posted in the same manner as the federal OSHA poster. Among these additional postings are:
- California Notice to Employees - Injuries Caused by Work Poster;
- California Safety and Health Protection on the Job Poster, which gives workers basic knowledge of safety rules and regulations;
- California Access to Medical and Exposure Records Poster, which provides workers with essential data about their rights when working with hazardous or toxic chemicals;
- Emergency Phone Numbers Poster, which lists emergency responders' phone numbers; and
- California Operating Rules for Industrial Trucks Poster, which provides essential information on the safe operation of powered industrial trucks, such as forklifts.
Cal/OSHA may only grant proposed modifications for serious violations if an employer has:
- Completed the abatement at the initial Cal/OSHA inspection;
- Completed the abatement at a follow-up inspection before an actual citation has been given; or
- Submitted a signed affidavit that also includes supporting evidence showing the violation has been corrected with the measures listed in the citation. This must be submitted within 10 working days after the end of the abatement period.
Under these requirements, an employer will need to fix serious violations within the given time frame even when it is seeking reconsideration of the citation. The fact that an appeal is being conducted does not excuse an employer from completing the abatement and from providing proof of the abatement in the case of a serious, repeat or willful violation unless the employer receives a stay or suspension of the requirement.
To receive a stay or suspension, an employer must file a verified, written petition that includes supporting declarations within 10 days of the order or decision. An employer must prove, by the greater weight of the evidence, that a stay or suspension will not hurt the health or safety of its workers. Proof of abatement will not be considered to be an admission that a violation occurred in cases being appealed.
An employer that does not complete one of the three requirements for proof of abatement may face civil penalties beginning on the date for abatement listed on the citation. After 45 days, an employer with a serious citation that has not given the required proof of abatement will be re-inspected.
Protection From Wildfire Smoke
An emergency regulation to protect outdoor workers from wildfire smoke became effective on July 29, 2019 and will remain effective through January 18, 2020 with two possible 90-day extensions. 8 CCR 5141.1.
The regulation applies to workplaces where:
- The current Air Quality Index (AQI) for PM2.5 is 151 or greater, regardless of the AQI for other pollutants; and
- The employer should reasonably anticipate that employees may be exposed to wildfire smoke.
Workplaces and operations exempted from this regulation include:
- Enclosed buildings or structures in which the air is filtered by a mechanical ventilation system and the employer ensures that windows, doors, bays and other openings are kept closed to minimize contamination by outdoor or unfiltered air;
- Enclosed vehicles in which the air is filtered by a cabin air filter and the employer ensures that windows, doors, and other openings are kept closed to minimize contamination by outdoor or unfiltered air;
- The employer demonstrates that the concentration of PM2.5 in the air does not exceed a concentration that corresponds to a current AQI of 151 or greater by measuring PM2.5 levels at the worksite;
- Employees exposed to a current AQI for PM2.5 of 151 or greater for a total of one hour or less during a shift; and
- Firefighters engaged in wildland firefighting.
An employer must determine employee exposure to PM2.5 for covered worksites before each shift, and periodically after that as needed, by:
- Checking AQI forecasts and the current AQI for PM2.5 from any of the following: US EPA AirNow website, US Forest Service Wildland Air Quality Response Program website, California Air Resources Board website, local air pollution control district website or local air quality management district website;
- Obtaining AQI forecasts and the current AQI for PM2.5 directly from the EPA, California Air Resources Board, local air pollution control district or local air quality management district by telephone, email, text or other effective method; or
- Measuring PM2.5 levels at the worksite and converting the PM2.5 levels to the corresponding AQI.
An employer must reduce employee exposure to PM2.5 to less than a current AQI of 151 by using engineering controls (e.g., by providing enclosed buildings, structures or vehicles where the air is filtered) or administrative controls (e.g., by relocating work locations, changing work schedules, reducing work intensity or providing additional rest periods), where possible.
Respiratory protective equipment is required where the current AQI for PM2.5 exceeds 500. However, where the current AQI is equal to or greater than 151, but less than 500, an employer must provide respirators and encourage their use, but employee use is voluntary. Respirator use is also required in emergencies (including utilities, communications and medical operations that directly aid firefighting or emergency response).
Employee communication. An employer must establish and implement a system for communicating wildfire smoke hazards in a form readily understandable by all affected employees, including provisions designed to encourage employees to inform the employer of wildfire smoke hazards at the worksite without fear of reprisal. The system must include effective procedures for:
- Informing employees of:
- The current AQI for PM2.5; and
- Available protective measures to reduce their wildfire smoke exposures; and
- Encouraging employees to inform the employer of:
- Worsening air quality; and
- Any adverse symptoms that may be the result of wildfire smoke exposure (e.g., asthma attacks, difficulty breathing and chest pain).
Training. An employer must provide employees with effective training and instruction on:
- The health effects of wildfire smoke;
- The right to obtain medical treatment without fear of reprisal;
- How employees can obtain the current AQI for PM2.5;
- The requirements the wildfire smoke protection regulations;
- The employer's two-way communication system;
- The employer's methods to protect employees from wildfire smoke;
- The importance, limitations and benefits of using a respirator when exposed to wildfire smoke; and
- How to properly put on, use and maintain the respirators provided by the employer.
For additional details on the training requirements, see Training and Development: California.
Drivers in California are generally prohibited from holding and operating a hand-held cell phone or electronic wireless communications device, but are permitted to use the voice-operated and hands-free functions on the phone or device.
A driver may use a hand to operate a hand-held phone or device if both of the following conditions are met:
- The phone or device is mounted on a vehicle's windshield in the same manner as a portable Global Positioning System (GPS) is mounted or is mounted on or affixed to a vehicle's dashboard or center console in a manner that does not hinder the driver's view of the road; and
- The driver activates or deactivates a feature or function of the phone or device with the motion of a single swipe or tap of the driver's finger.
The law does not apply to:
- Manufacturer-installed systems that are embedded in the vehicle; or
- Emergency services professionals operating an authorized emergency vehicle in the course and scope of their duties.
An electronic wireless communications device includes, but is not limited to:
- A broadband personal communication device;
- A handheld device or laptop computer with mobile data access; and
- A pager.
Drivers under the age of 18 are prohibited from using any cellular device (including hands-free phones) while operating a vehicle. An exception applies for use for emergency purposes, such as to call a law enforcement agency. +Cal Veh Code § 23124.
All drivers are prohibited from texting while driving unless the texting is done through a voice-activated function.
An individual may not use a wireless phone while driving a school bus or transit vehicle except for work- or emergency-related purposes, such as an emergency call to a law enforcement agency. +Cal Veh Code § 23125.
It is important for an employer to pay attention to and enforce these laws because California courts have found that an employer may be liable for a car accident that occurs while an employee is driving a personal car for personal business if that car is also required for work purposes. For example, an employee drove her personal car to and from the office and made other work-related trips during the day. On her way home, she decided to stop for frozen yogurt and a yoga class, and hit a motorcyclist. The employer was liable for the accident because the employee was acting within the scope of her employment when she commuted to and from work. The planned personal stops did not change the incidental benefit to the employer of having the employee use her personal vehicle for business. The stops were considered foreseeable, minor deviations from the employee's commute. See Moradi v. Marsh USA, Inc., +2013 Cal. App. LEXIS 736.
When creating policies and training for offsite workers, traveling work crews and employees who must operate vehicles, an employer should review these laws and incorporate the requirements into the workplace programs.
Drug and Alcohol Testing as a Safety Measure
In California, post-accident drug testing is somewhat complex. Although no state law prohibits post-accident testing, the state vigorously upholds the privacy of individuals. Tests required of individuals who caused or contributed to the accident may be a justifiable aspect of the accident investigation process, which is a required element in Cal/OSHA compliance. (An employer is required to investigate accidents and determine causes and methods to prevent future events under the California IIPP.)
However, some areas, such as San Francisco, are more protective of individual rights as it pertains to drug testing.
Therefore, due to potential privacy violations, it is vital that a California employer have assistance from legal counsel when developing a workplace drug testing policy.
Sacramento County Hotel Worker Protection Act
Under Sacramento County's Hotel Worker Protection Act, any hotel with 25 or more guest rooms located in the unincorporated area of Sacramento County and subject to licensure by Sacramento County must equip each employee who is assigned to work in a guest room or restroom with a panic button or notification device. The panic button or notification device must be provided at no cost to the employee.
A panic button means a portable emergency contact device that an employee can quickly or easily activate to summon to his or her location hotel staff who are able to provide immediate aid and assistance (e.g., a hotel security officer or manager).
In addition, a covered hotel must develop, maintain and comply with a written sexual harassment policy to protect employees against sexual assault and sexual harassment by guests. The policy must:
- Encourage employees to immediately report to the hotel instances of alleged sexual assault and sexual harassment by guests; and
- Describe the procedures that the employee and hotel must follow in such cases.
A current copy of the policy must be:
- Provided to all employees in English and Spanish; and
- Posted in conspicuous areas in the hotel where employees can reasonably be expected to see it (e.g., supply rooms or employee break rooms).
Sexual harassment means any unwelcome sexual advance, request for sexual favors or other verbal or physical conduct of a sexual nature.
Amendments to the Cal/OSHA Act
Under an amendment to the Cal/OSHA Act, effective January 1, 2020, a complaint received by the Division of Occupational Safety and Heath (DOSH) is deemed to allege a serious violation if there is a realistic possibility that death or serious injury could result from the actual hazard created by the condition alleged in the complaint. Under the current law, a serious violation exists if there is a substantial probability that death or serious injury could result.
In addition, the definitions of the following terms are amended:
- Serious injury or illness means any injury or illness occurring in a place of employment or in connection with any employment that requires inpatient hospitalization, for other than medical observation or diagnostic testing, or in which an employee suffers an amputation, the loss of an eye, or any serious degree of permanent disfigurement, but does not include any injury or illness or death caused by an accident on a public street or highway, unless the accident occurred in a construction zone.
- Serious exposure means any exposure of an employee to a hazardous substance when the exposure occurs as a result of an incident, accident, emergency, or exposure over time and is in a degree or amount sufficient to create a realistic possibility that death or serious physical harm in the future could result from the actual hazard created by the exposure.
The amendment also provides that a report involving a serious injury or death may be made through a specific online mechanism by DOSH. However, until DOSH creates the online mechanism, the employer may make the report by telephone or email.
Oakland Hotel Working Conditions
In November 2018, voters in the City of Oakland (City) approved the Hotel Minimum Wage and Working Conditions Ordinance, also known as Ballot Measure Z (Measure Z), which establishes workplace safety protections for hotel employees working at a hotel with 50 or more guest rooms. Under Measure Z, hotels must provide certain protections to their employees, including employer-provided emergency contact devices (panic buttons), rights for employees to report violent/threatening behavior and restrictions on maximum space to be cleaned. Measure Z becomes operative on July 1, 2020 when the Department of Workplace and Employment Standards is created and begins enforcing the measure.
Definitions. Measure Z provides several definitions, including the following:
Hotel is defined as:
- A public or private space or structure for living, offering the right to use the space for sleeping or overnight accommodations for compensation; and
- That contains 50 or more guest rooms or suites of rooms.
Hotel employer is defined as:
- A person who owns, controls and/or operates a hotel in the City;
- A person who owns, controls and/or operates any contracted, leased or sublet premises connected to or operated in conjunction with the hotel's purpose; or
- A person,other than a hotel employee, who provides services at the hotel.
Hotel employee means any individual who:
- Is employee directly by the hotel employer; and
- Was hired to or did work an average 5 hours/week for 4 weeks at one or more hotels.
Panic button means an emergency contact device carried by the hotel employee which allows him or her in the event of an ongoing crime, threat or other emergency to alert another employee or security guard responsible for providing immediate on-scene assistance.
Oakland, California, Code of Ordinances Sec. 5.93.010.
Protections from threatening behavior. Hotel employers are required to provide each hotel employee assigned to work in a guest room or bathroom without other employees present with a panic button, at no cost to the hotel employee. If a hotel employee encounters threatening conduct or another type of emergency that necessitates his or her use of a panic button, the employee may cease working and remove him/herself from the situation to await the arrival of the employee or security guard responsible for providing immediate assistance. A hotel employee may not be disciplined for ceasing work under those circumstances. Further, a hotel employee may not be disciplined for use of a panic button absent clear and convincing evidence the employee knowingly and intentionally made a false claim of emergency.
If a hotel employee brings to the attention of the hotel employer the occurrence of violence or threatening behavior, including but not limited to indecent exposure, solicitation, assault or coercive sexual conduct by a guest, the employee has the following rights:
- If the hotel employee reasonably believes that his or her safety is at risk and makes the request, the employee must be reassigned to a different floor, or, if none is available for his or her classification, a different work area, away from the person who is alleged to have engaged in the violent or threatening behavior, for the duration of the person's stay at the hotel;
- The hotel employer must immediately allow the hotel employee sufficient paid time to contact the police and make a police statement and to consult with a counselor or adviser of the employee's choosing. The employer will permit, but never require, the complaining employee to report an incident involving alleged criminal conduct by a guest to the law enforcement agency; and
- The hotel employer must cooperate with any investigation into the incident undertaken by the law enforcement authority and/or any attorney for the complaining hotel employee.
If the City notifies an employer that the City is investigating a complaint, the employer must post or otherwise inform its employees that it is under investigation.
Notice requirements. A hotel employer is required to provide written notification to each current hotel employee and to each new hotel employee at time of hire of his or her rights under the law.
The notice must be in each language spoken by more than ten percent or ten hotel employees at the hotel, whichever is less.
Posting requirements. Each hotel must place a sign on the back of each guestroom door, written in a font size of no less than 18 point, that includes the following:
- The heading "The Law Protects Hotel Housekeepers and Employees from Threatening Behavior;"
- A citation to Chapter 5.93 of the Oakland Municipal Code; and
- A notice of the fact that the hotel is providing panic buttons to its housekeepers, room servers and other hotel employees assigned to work in guest rooms without other employees present.
Oakland, California, Code of Ordinances Sec. 5.93.020(A).
Humane workload. A hotel employer may not require a room cleaner to clean rooms amounting to more than 4,000 square feet of floorspace in any one, 8 hour workday unless the employer pays the room cleaner twice his or her regular rate of pay for all hours. If a room cleaner works fewer than eight hours in a workday, the maximum floor space is reduced on a prorated basis. When a room cleaner during a workday is assigned to clean any combination of seven or more checkout rooms or additional bedrooms, the maximum floorspace to be cleaned must be reduced by 500 square feet for each such checkout or additional bedroom over six.
A hotel employer may not require or permit a hotel employee to work more than 10 hours in any workday unless the hotel employee consents. A consent must be written and signed by the hotel employee or communicated electronically through an account or number particular to the employee. The consent is invalid unless the hotel employer has advised the employee in writing not more than 30 days preceding the consent that the employee may decline to work more than 10 hours in any workday and that the hotel employer will not subject the employee to any adverse action for declining.
The notice must be provided in each language spoken by more than ten percent or ten hotel employees at the hotel, whichever is less.
A hotel employer give an employee an assignment in excess of ten hours in a workday due to an emergency situation. An emergency situation means an immediate threat to public safety or of substantial risk of property loss or destruction.
Oakland, California, Code of Ordinances Sec. 5.93.030
Recordkeeping and access to records. A hotel employer must preserve for at least three years the following information:
- For each room cleaner, a record of his or her name, pay rates received and the rooms (or at the employer's option, total amount of square footage) each cleaned each workday;
- A record of the written consents it received from hotel employees to work more than ten hours during a shift
- For each hotel employee, a record of his or her name, hours worked, paid sick leave accrual and usage, pay rate and proof of health benefits.
A hotel employer must provide access to hotel employees or their representatives for inspection and copying. However, the hotel employees' names, addresses and social security numbers must be redacted unless the requester is a hotel employee requesting his or her own records.
If a hotel employer does not maintain the records referenced above or does not permit reasonable access to them, it will be presumed, in any administrative or judicial proceeding that:
- The hotel employer required the room cleaner to clean total square footage in excess of 4,000 square feet on the day for which records are missing or inadequate, absent clear and convincing evidence otherwise;
- No written consent to work more than ten hours during a shift exists for a hotel employee for days on which written consents are missing or inadequate, absent clean and convincing evidence otherwise; and
- The hotel employer paid the hotel employee no more than the applicable federal or state minimum wage, absent clear or convincing evidence otherwise.
Oakland, California, Code of Ordinances Sec. 5.93.050.
Minimum wage. Measure Z also sets a new minimum wage for hotel employees, effective January 1, 2019. Oakland, California, Code of Ordinances Sec. 5.93.040.
There are no other developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.