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California is trying to take the enforcement reins on workplace safety reporting requirements pursued and adopted by the Obama administration before being revoked by the Trump administration and the Republican-led Congress, but it’s unclear the extent to which other states will follow its lead, experts say.
California Gov. Jerry Brown signed A.B. 2334 on Sept. 19, which makes several key changes to state workplace safety laws, mirroring the so-called Volks rule adopted by the Obama administration, experts say. That OSHA rule aimed to clarify that employers have a continuing obligation to make and maintain an accurate record of each recordable injury and illness for five years – a long-held agency stance that had been upheld by the Occupational Safety and Health Review Commission in cases dating back to 1993, but was rejected by the U.S. Court of Appeals for the District of Columbia Circuit in 2012 in AKM L.L.C. v. Secretary of Labor (Volks). The Republican Congress invoked the then-rarely-used Congressional Review Act to revoke OSHA’s Volks rule in March 2017.
In October 2016, the California Occupational Safety and Health Appeals Board issued a decision adopting the reasoning laid out in the federal appellate court’s Volks ruling in overturning a citation issued to an employer in an appeal filed by Bakersfield, California-based Key Energy Services Inc. The uncontradicted evidence in the record showed that the alleged failure to record all information required by the 300 log occurred in July 2011, but the citation was not issued until almost three and a half years later, according to the board’s ruling.
The California law seeks to remedy the statute of limitation issue by stating that a citation or notice shall not be issued by the division more than six months after the occurrence of the violation, but defining an occurrence as continuing until it is corrected or the division discovers the violation or the duty to comply with the violated requirement ceases to exist.
“Federal OSHA comes up with this idea and then abandons it … but then (California Division of Occupational Safety and Health) says ‘we’re going to do what you guys said you were going to do’,” said Jason Mills, a Los Angeles-based partner at Morgan, Lewis & Bockius LLP who represents employers in challenging OSHA citations. “It’s not really surprising. This is Cal/OSHA and this is their opportunity to assert their independence. We all thought we had avoided these requirements through the recent changes at fed OSHA, but obviously not in California.”
“California has made it pretty clear that this is in direct response to President Trump rolling back the Obama-era changes,” said Ilana Morady, San Francisco-based counsel in the workplace safety and environmental group at Seyfarth Shaw LLP. “The state wanted to make sure it can look back five years and not have the six-month statute of limitations. That’s going to be tough for employers in the state. During inspections, one of the first things that Cal/OSHA asks for are your logs. Now before you turn over your logs, you will have to make sure you have the last five years and then I recommend all employers go through those logs and make sure you don’t have errors with record-keeping because if you do you’re subject to citation. We see that all the time. You get something wrong – there were days away from work and you forget to indicate that or you forget to describe the part of body that was affected by the injury.”
But shortfalls in funding may prevent California regulators from launching a major enforcement action under its version of the Volks rule, said Howard Mavity, an Atlanta-based partner in the workplace safety and catastrophe management practice of Fisher & Phillips LLP.
“I question just how much energy CAL/OSHA will put into this,” he said. “They’ll enforce it. When they come onsite, I don’t think they will be reluctant in the least to go back now that they can argue continuing violation. If I were employers in California right now, get those (records) out, go back for five years and make sure they’re cleaned up. There’s a real premium on cleaning things up ASAP.”
The law also requires Cal/OSHA to monitor federal rulemaking and convene an advisory committee within 120 days if the division determines that OSHA has eliminated or substantially diminished the electronic recordkeeping rule promulgated by the Obama administration. In July, OSHA released a proposal to amend the 2017 record-keeping regulation by rescinding the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301. These establishments will continue to be required to submit information from their Form 300A summaries.
“Presumably, (California is) at some point, going to try to reinstitute – before the feds do, if the feds ever do – the requirement for the more detailed descriptions,” Mr. Mavity said.
“Employers all along should have been getting ready for these electronic reporting requirements and the Volks rule was in place and they should already be prepared for that,” Mr. Mills said. “I think what they need to do is dust off all their Volks rule and electronic reporting requirement files and get ready to turn them toward the new California OSHA standards. It’s going to happen so they need to accept that and then probably recognize that eventually it’s going to come back in place in federal OSHA.”
But if federal OSHA does not have a system to report, California would have to set up its own online reporting system, which could take years and could be costly, Ms. Morady noted.
“There’s no real guarantees here that we’ll even have an electronic reporting requirement in California that mirrors what President Obama had established,” she said.
While some states such as Oregon and Washington may follow California’s lead, most states are not likely to adopt similar requirements with respect to record-keeping, experts say.
“I don’t think it’s going to be the beginning of a tidal wave of resist OSHA legislation at a state level,” Mr. Mavity said. “These state OSHA plans tend to be pretty conservative in their own way.”
“California tends to be one of the more stringent state plan states,” Ms. Morady said. “But for the most part, the OSHA state plan states tend to just mirror federal OSHA. I wouldn’t actually expect too many other states to do something like what California is doing. There’s a lot of administrative effort and cost that goes into it, too. It adds to the state agency burdens.”
Supply chain pressures for safer workplaces have driven the adoption of a new global occupational health and safety management systems standard.