Avoid Cal/OSHA Citations Through Safety Implementation, Training

HR professionals should not leave compliance with California’s Occupational Safety and Health Act (OSH Act) plan for safety professionals to accomplish alone. HR instead has a “foundational role in this process,” said Alka Ramchandani-Raj, an attorney with Littler in Walnut Creek, Calif.

“From maintaining documentation and coordinating training to supporting investigations and enforcing accountability, HR helps demonstrate that the organization is actively implementing and following its safety processes,” she said. “In many respects, HR serves as the backbone of the documentation and accountability systems that Cal/OSHA expects employers to maintain,” referring to the California Division of Occupational Safety and Health, which administers the state’s OSH Act plan.

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Far-Reaching Standards

While California’s OSH Act plan incorporates many federal OSH Act standards, California has adopted many requirements that go beyond federal law, noted Robert Rodriguez, an attorney with Ogletree Deakins in Sacramento, Calif. These requirements include regulations governing workplace violence prevention, heat illness prevention, Injury and Illness Prevention Programs (IIPPs), wildfire smoke, and stricter injury reporting obligations.

The federal Occupational Safety and Health Administration, which enforces the federal OSH Act, relies on the act’s general duty clause to implement certain enforcement priorities that currently lack standards, such as heat illness. Cal/OSHA, by contrast, tends to issue new standards more frequently, said Sierra Vierra, an attorney with Jackson Lewis in Sacramento, Calif., and Salt Lake City. She recommended that employers operating in California focus on the state’s standards.

IIPP Requirement

The most significant structural difference between California and federal requirements is the state’s IIPP requirement, Rodriguez said. Unlike the federal Occupational Safety and Health Administration, “Cal/OSHA requires nearly every employer to establish, implement, and maintain an effective written IIPP, which is a safety program. Not surprisingly, IIPP violations remain among the most frequently cited by Cal/OSHA.”

An employer’s IIPP must, Ramchandani-Raj explained:

• Identify the individual responsible for administering the IIPP and include procedures for ensuring compliance with safe work practices.
• Address employee training, discipline, methods of communicating safety information, hazard reporting systems, safety meetings or committees, and written notices to employees.
• Establish procedures for hazard assessments, including initial and periodic inspections, evaluations of new equipment or processes, accident and exposure investigations, corrective actions, and record-keeping requirements.

“Cal/OSHA frequently cites employers not only under a specific safety regulation, but also under the IIPP standard, for failing to identify, correct, or prevent hazards associated with that regulation,” Ramchandani-Raj said.

Other Key Points

Cal/OSHA also places significant emphasis on implementation, Rodriguez added. “Inspectors are not simply evaluating whether policies exist; they want to see evidence that employers are actively training employees, correcting hazards, documenting compliance, and holding supervisors accountable.” 

Employers should be aware that the state’s serious injury reporting rules are broader than under federal law. Delayed reporting or failure to report is commonly cited as a violation of California’s state OSH Act plan, cautioned Ilana Morady, an attorney with Seyfarth in San Francisco.

In addition, the independent employee action defense is considerably more difficult to prove under California law, Ramchandani-Raj said. “Employers must demonstrate much more than an unforeseeable employee mistake, making employee misconduct defenses challenging to establish successfully.”

Moreover, some employers think Cal/OSHA readily negotiates reductions of serious classifications during the citation appeal process. In recent years, however, the agency has taken a much more aggressive enforcement posture, and obtaining classification reductions can be a difficult, hard-fought process, she said.

Toolkit: Complying with California Safety Standards

Building a Workplace Safety Culture

HR plays a critical role in bridging compliance and workplace culture, Rodriguez said. 

It’s a lesson employers might apply in other states as well. In recent years, the Nevada, Oregon, and Washington state agencies have conducted significantly more workplace inspections per capita than Cal/OSHA, said Andrew Sommer, an attorney with Fisher Phillips in Los Angeles. 

He attributed this gap to high turnover and chronic staffing shortages in Cal/OSHA enforcement. With fewer inspectors, Cal/OSHA has prioritized inspecting investigations of serious accidents and employee complaints, he noted.

Nonetheless, Sommer said HR should play a role in Cal/OSHA compliance as safety regulations have increasingly impacted a larger swath of the workforce and become more onerous for employers. 

For example, the workplace violence prevention law requires employers develop and implement a comprehensive workplace violence prevention plan, and annually train employees on the plan, plus review it for effectiveness, in cooperation with employees. This is no small feat, Sommer said.

“By partnering closely with safety professionals and operational leaders, HR can help ensure employees receive required training, safety concerns are reported without fear of retaliation, investigations are conducted appropriately, and corrective actions are consistently implemented,” Rodriguez said.

Common Cal/OSHA citations, according to Vierra, include:

• Not maintaining an effective IIPP.
• Heat illness hazards.
• Failure to timely report serious injuries or illnesses, and deaths.
• "Lockout/tagout failures,” meaning the failure to de-energize equipment employees are repairing.
• Failure to have necessary guards installed on equipment.
• Fall protection.

She added that the citations vary by industry.

But for all organizations, the most successful employers treat safety as an organizational value, not simply a regulatory requirement, Rodriguez said.