California Senate Bill 553  amended the California Labor Code to create new requirements for addressing workplace violence. These new requirements include a July 1, 2024 effective date for employers to establish and implement an effective Workplace Violence Prevention Plan (WVPP).

As discussed here, to assist employers in meeting this regulatory deadline, the California Division of Occupational Safety and Health (Cal/OSHA) released its downloadable Model WVPP. In addition to its model WVPP, Cal/OSHA has developed and recently released its Frequently Asked Questions about Workplace Violence Prevention in General Industry.

The FAQs cover topics such as:

• Definition of terms related to workplace violence
• Employer applicability (exceptions to specific employers or circumstances)
• WVPP
• Violent Incident Log
• Training
• Recordkeeping
• Enforcement deadlines and future standard proposals and adoption

Key clarifications include:

• Initial training on employer WVPP must be provided by the July 1, 2024 effective date; and
• Employers are responsible for making sure their WVPP is not generic, but “specific to the hazards and corrective measures for each work area and operation.”

Employers should also be aware that Cal/OSHA continues to work toward developing new regulations on workplace violence prevention in accordance with SB 553. In addition, statutory mandates require Cal/OSHA to develop and submit a workplace violence prevention standard to the Occupational Safety and Health Standards Board no later than December 31, 2025. Thereafter the Standards Board is required to adopt the standard no later than December 31, 2026.

Keep updated on regulatory progress by visiting Cal/OSHA’s Advisory Meetings webpage.

The federal Occupational Safety and Health Administration (OSHA) has finalized a new rule allowing workers to designate a third-party representative to accompany any OSHA inspector during a facility inspection. Because the rule does not require the representative to be a company employee or the facility to be unionized, the opportunity for union representatives to fill the role is concerning. As such, ahead of the rules effective date of May 1, 2024, employers should understand their rights when it comes to OSHA inspections. Below are a few key points:

1. Federal and State Rights. The new rule provides that “the representative(s) authorized by employees may be an employee of the employer or a third party.” The rule also authorizes a third party who – based on their relevant knowledge, skills, experience, language or communication skills – can assist OSHA during the inspection. However, neither of these provisions changes an employer’s Constitutional protections provided under Fourth Amendment or state property rights.

Such rights – absent a warrant – allow an employer to control how OSHA enters its property and the areas that may be accessed during an inspection. Insisting the inspector obtain or produce a warrant is well within an employer’s rights. However, doing so carries its own risks and rewards making it important for employers to seek legal counsel before making such a request.

Employers also retain the right to secure access to areas of the worksite containing trade secrets or other confidential information. This includes limiting access by non-OSHA personnel and insisting that any photos in these areas be marked as “trade secret.”

2. Update or Review Existing Inspection Procedures. Every worksite should have a written plan outlining the procedures that must be followed when an OSHA inspector arrives. Plans should designate a primary (and secondary) supervisory employee to act as the company’s contact person for the inspection. This individual will be responsible for accompanying the investigator throughout the inspection, except during interviews with non-supervisory personnel who do not request a manager’s presence. The contact person does not necessarily need to be the company’s safety manager, but the individual does need to be trained on inspection procedures and must be ready to take notes and their own photos, samplings and tests alongside those taken by the inspector.

3. Understand the Practicalities of an Inspection. OSHA Inspection plans should include a few practical tips and reminders such as:

• Before an inspection begins it is permissible for the contact person to request that the inspector detail the scope of the inspection (e.g., the complaint(s) alleged, and the area(s) impacted).

• It is permissible for inspectors to be accompanied by a company representative throughout the entire inspection. The company contact should be trained and confident in the knowledge that it is their job not only to accompany inspectors but to get them from one area to the next by the most expedient route. There is no requirement to allow access to areas considered outside the scope of the inspection.

• It is permissible to prohibit interviews of managers or supervisors on the day of the inspection. Interviews cannot be flatly refused or postponed indefinitely, but nothing requires they be conducted on the day of the inspection.

• On the day of the inspection employers are allowed to limit documentation provided to just the company’s OSHA 300 logs, 300A summaries, 301 forms, and relevant safety data sheets. Other documents may be required but need not be provided absent advanced notice.

• Hazardous activities should be put on hold during the inspection.

4. Weigh – in Advance – the Risk of Refusing Access to Third-Party representatives. Before finalizing an inspection plan, employers should discuss with their legal counsel the risks associated with refusing to allow third-party representatives access alongside OSHA inspectors. Allowing the OSHA inspector but not third-party representatives could be interpreted by the OSHA inspector onsite as a complete refusal; even where the employer makes clear the prohibition applies only to the third-party. Even a perceived refusal could have the effect of requiring the inspector to obtain a warrant before proceeding. Since there are various risks associated with requiring a warrant before inspection, the issue should be discussed with counsel.

Having an inspection plan takes the guesswork out of OSHA inspections and gives designated company contacts the confidence they need to manage all aspects of the inspection from the outset and ensure the process goes as smoothly as possible.

As discussed here, on March 22, 2024, the Cal/OSHA Standards Board took an unexpected step by unanimously approving an indoor heat illness prevention regulation. The approval has left California employers in a precarious state of limbo. What happens next?

Over the next 30 working days, the California Office of Administrative Law (OAL) must review the rulemaking record to ensure agency requirements to pass the rule were satisfied. Depending on the outcome of this review it will either approve the rule for filing with the Secretary of State or reject it and send it back to be re-introduced for a revote.

What Does it All Mean?

Despite a likely circuitous route to finalization, preparation is the best course of action.  The best place to begin is to become familiar with the proposed rule. A few key points are outlined below.

For employers with indoor work areas where the temperature equals or exceed 82 degrees Fahrenheit when employees are present, the proposed rule would add the following requirements:

• Cool-Down Areas: The term “cool-down area” in the regulation is used in lieu of the term “shade” to clarify that a cool-down area can be indoors or outdoors. This area must be maintained at a temperature below 82 degrees, blocked from direct sunlight, and shielded from other high radiant heat sources. In addition, employers will be required to allow and encourage employees to take preventative cool-down rests when they feel the need to do so to protect themselves from overheating.
• Provision of Water: This requirement to provide water in indoor cool-down areas is to harmonize with existing drinking water requirements for outdoor hear illness protection and to ensure quick access to drinking water as a means of controlling heat illness. Specific water quantities are provided to ensure quantities sufficient to maximize the effectiveness of drinking water as a measure to prevent heat illness.
• Training: This provision requires that supervisory and nonsupervisory employees be provided certain information before beginning work, including:
  • The role environmental and personal risk factors play in exacerbating the risk of heat illness;
  • A description of the employer’s procedures and employees’ rights;
  • An explanation of the importance of drinking small quantities of water frequently;
  • The importance of acclimatization and close observation;
  • The signs and symptoms of heat illness along with the appropriate first aid and the importance of immediately reporting signs and symptoms;
  • The employer’s procedures for responding to possible heat illness and for contacting emergency services; and
  • The employer’s procedures for ensuring that clear and precise directions are provided to emergency responders.
• Emergency Response Procedures: Emergency response procedures must include maintaining effective communication; responding to signs and symptoms of possible heat illness; contacting emergency medical services; and ensuring that clear and precise directions to the work site are provided to emergency responders.
• Observation During Acclimatization: Requires close observation of all employees where no effective engineering controls are in use to control the effect of outdoor heat on indoor temperature during a heat wave. The regulation identifies the trigger temperature or heat index that requires close observation of an employee who has been newly assigned to a work area, or work involving the use of clothing that restricts heat removal, or a high radiant heat area.
• Heat Illness Prevention Plan (HIPP): Employers must establish, implement, and maintain an effective HIPP that is available in both English and the language understood by the majority of the employees and be available at the worksite to employees and to representatives of Cal/OSHA upon request. At a minimum, the HIPP must include:
  • Procedures for the provision of water and access to cool-down areas;
  • The assessment and control measures of work areas;
  • Emergency response procedures; and
  • Close observation during acclimatization.

Representatives of the U.S Occupational, Safety and Health Association (OSHA) as well as Cal/OSHA and Arizona’s ADOSH are authorized to inspect the workplace whenever they have reason to believe an employee may be in danger due to employment hazards.  Complaints of workplace hazards can manifest in several ways, but employee complaints are the most common. Below are a few key points when it comes to understanding employee-initiated OSHA complaints and how to handle inspection visits.

Employee Initiated Complaints

Employees have the right to submit complaints if they encounter safety or health hazards in the workplace. These complaints often involve ongoing issues that affect employee well-being. Common safety and health hazards include:

• Unsafe Working Conditions: Employees can report hazardous conditions such as faulty equipment, inadequate safety measures, or lack of proper training.
• Health Risks: Complaints related to exposure to harmful substances, poor ventilation, or inadequate personal protective equipment fall under this category.
• Physical Hazards: These include risks like slippery floors, electrical hazards, or unsafe machinery.
• Ergonomic Concerns: Employees can complain about uncomfortable workstations, repetitive strain injuries, or improper lifting techniques.

Employees who believe they have faced retaliation from their employer for raising safety or health concerns can also file complaints with OSHA. Retaliation may take various forms, such as:

• Adverse Employment Action: If an employer takes adverse actions (such as termination, demotion, or reduced hours) against an employee for reporting hazards, it constitutes retaliation.
• Intimidation: Threats, harassment, or creating a hostile work environment due to safety complaints are unacceptable.
• Reduced Benefits or Pay: Retaliatory measures may include reducing benefits, pay, or denying promotions.

Handling Inspection Visits

OSHA inspectors often visit workplaces unannounced, typically during regular hours. Employers are advised to establish inspection procedures due to the unpredictable nature of these types of visits. Here are a few key steps to effectively interact with inspection officers:

1. Upon arrival, instruct all employees to direct the inspector to a designated representative.
2. Inform the inspector to wait for the company’s designated representative, typically the safety coordinator or plant manager. All managers should be notified of the inspector’s presence.
3. If the designated representative is unavailable within 30 to 60 minutes, inform the inspector. Respectfully suggest rescheduling the inspection.
4. If the representative is available, allow the inspector to conduct the opening conference. An employee representative may also attend.
5. During the opening conference, ask the reason for the inspection and attempt to limit its scope.
6. The inspector will initiate the investigation after the opening conference.
7. The designated representative should accompany the inspector throughout the inspection, except when the inspector wishes to speak to employees privately.
8. Employees should always answer inspection-related questions courteously and directly.
9. The inspector may take samples and photographs; with trade secrets subject to confidentiality provisions.
10. Keep a record of the inspection’s scope, interactions, and observations.
11. Request a closing conference after the inspection. Multiple company representatives should attend.
12. Prepare a report of the inspection marked “For Legal Review” and send it only to legal counsel for attorney-client privilege. Keep copies confidential.

What Does It All Mean?

Employers should strive to take employee complaints seriously and address safety and health concerns promptly. At every opportunity encourage open communication, provide proper training, and create a safe work environment to prevent hazards and potential retaliation.

Remember, a proactive approach to safety benefits both employees and the organization.