California Enacts New Law Responding to Federal OSHA Changes

By Benjamin Ebbink © Fisher Phillips September 25, 2018
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On Sept. 19, Gov. Jerry Brown signed AB 2334 to make various workplace safety and health changes to California law, largely in response to recent activity by President Donald Trump's administration. 

Among other things, AB 2334 requires the California Division of Occupational Safety and Health (Cal/OSHA) to monitor federal electronic record-keeping requirements and—depending on federal action—to convene an advisory committee to evaluate how to move forward with a state-law version of the proposed record-keeping requirements. 

In addition, AB 2334 resurrects the so-called Volks rule, which provides for a longer statute of limitations for record retention violations. AB 2334 goes into effect on Jan. 1, 2019.

Back in 2016, during former President Barack Obama's administration, the federal Department of Labor adopted a new electronic record-keeping and reporting procedure known as the Improve Tracking of Workplace Injuries and Illnesses rule.  However, the Trump administration recently suspended the July 1, 2018 deadline for the electronic submission of OSHA 300 log and 301 form (first report of injury) information for worksites with more than 250 employees and announced a proposed rule to revise and relax the increased reporting requirements.

In an effort to resist this federal action, AB 2334 requires Cal/OSHA to monitor rulemaking at the federal level. If it determines that federal OSHA has "eliminated or substantially diminished" the electronic record-keeping proposal, Cal/OSHA is required to convene an advisory committee within 120 days to "evaluate how to implement the changes necessary to protect the goals" of the proposed federal rule as issued by the Obama administration in May 2016.

Therefore, it seems clear that California is setting itself up to impose its own version of the proposed federal rule should the Trump administration ultimately relax the electronic reporting proposal.

The Volks Rule

AB 2334 also contains a provision that seeks to resurrect a statute of limitations rule related to recordkeeping requirements known as the Volks rule.  The rule received its nickname from a D.C. Circuit Court case that held that federal OSHA could not cite employers for failing to record workplace injuries or illnesses if the violation took place more than six months before the citation was issued. However, in the waning days of the Obama administration, federal OSHA adopted what amounted to a five-year statute of limitations for such violations, stating that the duty to record an injury or illness continues for the full five-year record retention period under federal law. In 2017, however, Trump signed a resolution pursuant to the Congressional Review Act that revoked this rule.

Following the D.C. Circuit Court case mentioned above, the Cal/OSHA Appeals Board announced in a decision that it would similarly interpret the "occurrence" statute of limitations as barring any citation for failure to report an injury which occurred more than six months after the violation.  

AB 2334 amends California law to largely revert to the Obama Administration's Volks rule by specifying that a violative "occurrence" for record retention violations continues until it is corrected, Cal/OSHA discovers the violation, or the duty to comply with the requirement is no longer applicable. In other words, a failure to record an injury or illness would be deemed a "continuing violation" until discovered or corrected.

Next Steps

AB 2334 goes into effect on Jan. 1, 2019. With respect to the provisions related to the proposed federal electronic reporting rule, California employers will have to adopt a "wait and see" approach. Depending on the final action taken by the Trump administration, Cal/OSHA could be required to form an advisory committee to respond. However, any reporting changes subsequently adopted would require further legislative or regulatory activity. We'll continue to monitor developments at the state and federal level and keep you apprised of any further developments taken by Cal/OSHA.

With respect to the changes related to the longer statute of limitations period for alleged record retention violations, California employers should expect to see citations issued by Cal/OSHA for such violations going back beyond the normal six-month statute of limitations period. Therefore, employers should review their record-keeping and retention processes for workplace injuries or illnesses, especially their OSHA 300 logs, and make any changes necessary to ensure compliance. 

California employers are likely to see aggressive enforcement activity from Cal/OSHA seeking to "reach back" years into the past for these types of record-keeping violations.

Benjamin Ebbink is an attorney with Fisher Phillips in Sacramento. © 2018 Fisher Phillips. All rights reserved. Reposted with permission.

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