Cal/OSHA Citations Trending Upward
EH&S News – August 17, 2017
Written by: Joe Mangiardi, NES, Inc.
Cal/OSHA citations are on an upward trend recently as staffing issues are resolved.
Cal/OSHA Citations: Ramping Up Inspections
Cal/OSHA citations have been on the rise over the past several years, and last year that number reached its highest point since 2008. The recession of a decade ago, which hit everyone hard, left Cal/OSHA struggling to meet federally mandated quotas for inspections and citations. Federal and state funding dropped off, and the resulting staffing constraints led to a reduction in inspections and, as a consequence, a reduction in citations. However, since 2014 Cal/OSHA has added approximately 100 inspector and support personnel to its ranks, bolstering its ability to perform inspections and to issue and process citations. According to Cal-OSHA Reporter article Cal/OSHA Cites the Highest Number of Violations in Almost a Decade, funding for Cal/OSHA will be raised from $82 million this past fiscal year to $88 million for the upcoming year—though some of this will cover cost of living increases.
Cal/OSHA is the name commonly used to refer to the California Division of Occupational Safety and Health (DOSH), which enforces regulations pertaining to the protection of workers in California from workplace health and safety hazards.
By the Numbers: Cal/OSHA Citations and Inspections
Not only have the numbers for inspections and citations increased over recent years, the percentage of alleged violations categorized as serious is also up: 22% last year, the highest since 23% in 2007. The total alleged violations in 2016 were nearly identical in number (20,035) to those in 2007 (20,022), though the number of inspections differed markedly in 2016 (7,869) versus 2007 (9,259). These statistics seem to indicate that regulations are being more strictly enforced than in years past.
In 2016 the California construction industry experienced the most inspections at 2,351, while the manufacturing industry received the highest rate of alleged serious violations at 28%. The notoriously dangerous industries of construction and agriculture each incurred alleged serious violations in 23% of inspections. Notably, the financial / real estate sector and the wholesale trade industry recorded only 74 and 278 on-site inspections, respectively, but tied for the second-place ranking in percentage of alleged serious violations at 24%, showing that even non-historically violation-prone industries are susceptible to citations at a significant rate.
Citations from Cal/OSHA have increased steadily in the last decade along with the percentage of alleged serious violations resulting from inspections.
Regardless of the manner in which the Cal/OSHA inspections and citations numbers are interpreted, a strong upward trend is clear, and businesses had better be aware that this trend will likely continue into the coming years.
Cal/OSHA Subject to Federal Inspections
Demonstrating that Cal/OSHA is itself subject to routine inspections, the U.S. Department of Labor Occupational Safety and Health Administration (Fed-OSHA) recently completed its audit of Cal/OSHA operations for fiscal-year 2016 (October 2015 to September 2016). Details on Fed-OSHA’s findings were published in a document entitled FY 2016 Follow-up Federal Annual Monitoring and Evaluation (FAME) Report, which primarily assesses Cal/OSHA’s inspections and citations data relative to federal standards. The report also evaluates various Cal/OSHA programs and administrative protocols. Here is a summary of the results:
Cal/OSHA was commended for its effective promulgation of safety and health information. In noting this, the Fed-OSHA report says, “California has continued to lead the way in innovative standard development. During this past fiscal year, Cal/OSHA and the Occupational Safety and Health Standards Board (OSHSB) developed, proposed, amended and promulgated 11 new or revised regulations . . . A few of these regulations are the first of their kind in the nation.” One of the programs given special praise was Workplace Violence Prevention in Healthcare, which Fed-OSHA considers to be innovative and anticipates will be particularly impactful as an example to the rest of the U.S. According to the report, Cal/OSHA staff distributed over 60,000 publications and flyers at approximately 100 outreach events and activities, reaching 30,000 affected workers and providing thousands of workers with health and safety information.
Cal/OSHA also received great praise for its proactive heat illness prevention plan. Cal/OSHA conducted 1,278 heat outreach activities, issued four news releases, and initiated a multifaceted marketing campaign consisting of billboards, bilingual radio notifications, and store posters (for more information on heat illness prevention, see the NES article Heat Illness Prevention: Managing Rising Temperatures in the Workplace).
The state goal of conducting 7,300 inspections in fiscal-year 2016 was surpassed, and over 19,851 hazards were abated, up from 17,527 the year before.
One negative finding was that some retaliation complaints related to the reporting of workplace fatalities, injuries, or illnesses, but which did not involve health or safety issues, were being handled by the California Division of Workers’ Compensation instead of the Division of Labor Standards Enforcement. This is relevant because, as Fed-OSHA states in the report, “Reports of work related fatalities, injuries, or illnesses, whether there is a related safety or health hazard, are considered OSHA activities, therefore, all investigations of retaliation resulting from these reports fall under the OSHA grant.”
Another criticism was that, following passage of the Bipartisan Budget Bill (November 2015), Fed-OSHA raised its maximum penalties in August 2016 and again in January 2017 in line with the Consumer Price Index (CPI); however, Cal/OSHA had failed to increase its maximum penalties in a timely fashion. California legislation has been enacted that will do just this, effective the first day of 2018. It deserves mentioning that this lag is somewhat negated by the fact that California has already been maintaining the highest average penalties for serious violations in the U.S.—Cal/OSHA citations are at least double the cost of the national average across all business sizes. In businesses of 1-25 employees these are more than triple the national average, and in businesses with 26-100 employees they are imposed at a cost nearly triple the national average.
Cal/OSHA has also failed to make its regulations for residential construction fall protection at least as stringent as federal regulations found in 29 Code of Federal Regulations (CFR) 1953.5(a), which mandates six feet as the threshold for requiring fall protection (for more on changes to OSHA fall protection regulations, including training requirements, see the NES article OSHA Final Rule: Walking-Working Surfaces and Personal Fall Protection Systems).
Fall protection standards in California are mostly at least as stringent as federal regulations.
Further demerits largely had to do with the lack of meeting certain federally established annual performance goals in particular categories of inspections, citations, and abatement processes. Fed-OSHA objectively recognized the budgetary constraints stemming from last decade. Given that Cal/OSHA is just recently recovering from these, it could well be argued that such shortcomings should be judged relative to that reality. Other findings noted a range of administrative inefficiencies, for which relevant recommendations were provided.
Is Cal/OSHA Coming to Visit Your Business?
Most Cal/OSHA citations result from inspections triggered by incidents, and can therefore be anticipated, but many visits come as a surprise to businesses (known as “programmed” inspections), leading business owners and operators to scramble in the moment. Complaints can also lead to inspectors arriving at the door of your business. The NES team of industrial hygienists and environmental consultants can alleviate fears of Cal/OSHA citations by visiting your workplace and, as the case may be, making sure that all is in order or providing instruction as to how to operate in compliance with applicable regulations.
Letting NES in on the flow of business operations can drastically reduce employers’ fears of Cal/OSHA citations.
Ensuring that your employees receive proper training is another effective deterrent of Cal/OSHA citations and related notices of violation from your local certified unified program agency (CUPA). Training is a proven means of reducing workplace incidents, which in turn reduces the chances your business will fall under the scrutiny of an inspector in the first place.
For more information about our environmental health & safety consulting and training capabilities, contact NES at 916-353-2360 / 1.800.NES.ADVISE (1.800.637.2384) or firstname.lastname@example.org.
Cal-OSHA Reporter Article: Cal/OSHA Cites the Highest Number of Violations in Almost a Decade
U.S. Department of Labor Occupational Safety and Health Administration Cal/OSHA FAME Report: FY 2016 Follow-up Federal Annual Monitoring and Evaluation (FAME) Report
Cal-OSHA Reporter Article: Fed-OSHA’s Report Card on Cal/OSHA