All California employers with 20 or more employees must have a written Illness & Injury Prevention Program (IIPP) (sometimes referred to SB 198). If you have less than 20 employees and are not designated as a high hazard industry, there may be lesser requirements regarding a written IIPP.
Any employer who commits any Regulatory or General violation shall be assessed a civil penalty of up to $7000 for each such violation. The proposed penalty shall be adjusted for Size, Good Faith, and History; however, an abatement credit shall not be granted.
Not having the required IIPP would likely be considered a Regulatory violation.
The Code states that: No civil penalty shall be assessed against an employer who adopts, posts, and implements in good faith an IIPP for Non-High-Hazard Employment for a first violation of the IIPP standard adopted pursuant to the Labor Code.
The Code further states that: The penalty for any Serious violation shall not be subject to adjustment (downward) other than for size of the company where the employer does not have an operative IIPP.
A new California law (AB 2774) makes it easier for the California Division of Occupational Safety and Health (Cal/OSHA) to classify workplace safety violations as serious for purposes of issuing citations and proposed penalties to employers. The bill broadens the definition of “serious violation” and establishes specific procedures for Cal/OSHA to create a rebuttable presumption that a “serious violation” exists at a worksite. An employer who receives a citation for a “serious violation” may be assessed up to $25,000 in civil penalties.
Under the new law, Cal/OSHA can create a rebuttable presumption that a “serious violation” exists if it demonstrates that “there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation.” This realistic possibility standard is looser than the California Labor Code’s previous requirement of a substantial probability of death or serious physical harm.
Serious Physical Harm
Serious physical harm is defined as any injury or illness, specific or cumulative, occurring in the place of employment or in connection with any employment, that results in any of the following:
- Inpatient hospitalization for purposes other than medical observation.
- The loss of any member of the body.
- Any serious degree of permanent disfigurement.
- Impairment sufficient to cause a part of the body or the function of an organ to become permanently and significantly reduced in efficiency on or off the job.
Before issuing a citation alleging that a particular violation is serious, Cal/OSHA inspectors are directed to consider the following information:
- The training employees and supervisors have had related to preventing employee exposure to the hazard or similar hazards;
- Employer procedures for uncovering and controlling the hazard or similar hazards;
- Supervision of exposed or potentially exposed employees
- Employer procedures for communicating with employees regarding its health and safety rules; and
- Any information the employer provides regarding the circumstances surrounding the alleged violation, why the employer believes a serious violation does not exist, and why the employer’s actions were reasonable.
To Fight the Serious Violation Presumption
If Cal/OSHA establishes a presumably serious violation, the employer may rebut the presumption by presenting evidence that it did not know and could not, with the exercise of reasonable diligence, have known of the presence of the violation. This burden can be met by proving that:
- the employer took all steps a reasonable employer would take under the same circumstances, and
- the employer took effective action to eliminate employee exposure to the hazard created by the violation as soon as the hazard was discovered.
Implications for Employers
When you look at the basic requirements for an IIPP and the regulations that give most employers credit for having a compliant IIPP, you should see that it is a prudent business practice to comply with the regulations. Once you add in the new, enhanced penalty structure plus the fact that California is looking for enhanced revenues from Cal-OSHA, the case for compliance becomes even stronger.
All California employers should make sure they have strong safety training programs for employees and supervisors, systems to find and fix hazards, and understanding industry best practices to address hazards.
Human Resources 4U now has enhanced capabilities to create IIPPs and supplemental safety programs specific to all industries and turnkey safety training programs.