By Joshua M. HendersonIlana R. MoradyJames L. Curtis, and Craig B. Simonsen

Seyfarth Synopsis: CalOSHA published a news release TODAY, on a new emergency regulation for the electronic submission of CY 2017 Form 300A on Occupational Injuries and Illnesses.  CalOSHA submitted the rule yesterday, and will allow public comments until Tuesday, October 30th, with the intention of adopting it as final by November 5th!

According to CalOSHA, businesses operating in California that would be required to submit the CalOSHA Form 300A online include all establishments with 250 or more employees, unless specifically exempted by section 14300.2 of Title 8 of the California Code of Regulations, and establishments with 20 to 249 employees in the specific industries listed on page 8 of the emergency regulation’s proposed text (including common industries such as manufacturing, grocery stores, department stores, and warehousing and storage). The reporting deadline would be December 31, 2018. Beginning in 2019, the reporting deadline would be March 2 of the year after the calendar year covered by the form(s). So, for example, CY 2018 300A Forms would be submitted by March 2, 2019.

Cal/OSHA submitted the emergency regulation amending recordkeeping sections 14300.35 and 14300.41 of Title 8 of the California Code of Regulations to the Office of Administrative Law (OAL) on October 25.  Interested persons have until “October 30 to submit comments on the proposed emergency regulation.” OAL will have until November 5 to review and adopt or deny the proposed regulation.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

HiRes (2)As we trudge through the dog days of summer, temperatures rise, employees daydream about vacation, and, unfortunately, workplace accidents and injuries happen. This is a time to note that some Cal/OSHA District Offices take a very expansive view of injury and illness reporting requirements.  And not all District Offices take the same approach!  Thankfully, we have a team of Cal/OSHA lifeguards to help keep you above water.

Please see here for a fascinating article on the District Offices’ view, written by two Cal/OSHA experts: Mark A. Lies, II and Ilana R. Morady. With this guidance, the forecast is more likely to show clear waters ahead!

This blog post was originally published in Seyfarth Shaw’s Environmental & Safety Law Update.

California is one of 22 states and jurisdictions that has its own OSHA Plan covering private sector employers.  The federal OSHA law, of course, continues to provide a minimum level of safety, or “floor,” under which these state regulations may not fall.  But above this regulatory floor, California is generally free to regulate workplace safety and health.  And it has done so, and continues to do so, with considerable vigor.  California employers must take heed of these differences.

Take one recurring example.  Under federal law, an employer must report a multiple hospitalization within 8 hours of the work-related incident.  Specifically, the reporting obligation arises from “the in-patient hospitalization of three or more employees as a result of a work-related incident.”

California is stricter in this regard—there is no three-employee rule.  Under Cal/OSHA, an employer must report any work-related serious injury, illness, or death no more than 8 hours “after the employer knows or with diligent inquiry would have known of the death or serious injury or illness.”  (Federal law and Cal/OSHA have nearly identical requirements for reporting of work-related fatalities)  Under exigent circumstances, the employer will have 24 hours to report the incident.  “Serious injury or illness” generally means any work-related injury or illness “which requires inpatient hospitalization for a period in excess of 24 hours for other than medical observation or in which an employee suffers a loss of any member of the body or suffers any serious degree of permanent disfigurement….”

Recent case law from the California Occupational Safety and Health Appeals Board has made it tougher on employers who fail to report a serious occupational injury or illness.  Unless a miscarriage of justice would result, there is an automatic $5,000 penalty for failing to report; it cannot be negotiated down.  Previously, the Appeals Board had allowed the Administrative Law Judges some discretion in reducing the penalties for failing to report.  No longer.  That discretion still exists, however, in cases in which an employer makes an untimely report, e.g., longer than 8 hours after the incident (in the absence of exigent circumstances).  Therefore, it is critical that California employers report any serious workplace injury or illness to the local district office of the Division of Occupational Safety & Health, even if it is untimely.