We hope that these answers to general questions about Cal/OSHA programs and procedures will be helpful to you. But they do not constitute legal advice. When in doubt about how to proceed, seek help from an expert.
Illness and Injury Prevention Programs
Q: What is an Illness and Injury Prevention Program (IIPP)?
A: An IIPP is the employer’s written safety plan. Every employer with employees in California is required to have one. It is a basic outline of how the employer intends to identify and fix workplace hazards, and to train its employees how to work safely. For more on what your IIPP should look like, read further. Also visit our Resources section.
Q: How detailed should my IIPP be?
A: This is one case where less it truly more. Think of your IIPP as a set of promises; Cal/OSHA certainly does. You should stick closely to the required elements of Title 8 California Code of Regulations section 3203 and go no further. Adding more detail to your IIPP will only set you up for failure.
Example: A client included in its IIPP both the mandated language about hazard recognition and then added specific provisions on how an imminent hazard would be handled. When that procedure was not followed and a worker died Cal/OSHA issued a willful serious accident-related citation for failing to follow its IIPP. Cal/OSHA also referred the matter to the local district attorney who brought criminal charges against the employer.
For an example of a compliant IIPP, you need only look as far as Cal/OSHA’s website.
Heat Illness Prevention Programs (HIPP)
Q: What is a Heat Illness Prevention Program (HIPP)?
A: Employers with “outdoor places of employment” are required to have a HIPP. The regulation is intended to eliminate the possibility of any California worker from suffering the effects of heat illnesses, and Cal/OSHA will not let an incident of illness go without a citation. The requirements of the program are extensive and initial implementation is difficult.
When the regulation was adopted, it was intended to apply to obvious outdoor employment settings, such as the construction and agricultural industries. Recent cases have blurred the lines on what constitutes an “outdoor place of employment.” The Court of Appeal has recently issued a decision which suggests that even indoor places of employment whose employees spend more than “intermittent” periods outdoors may fall under this mandate.
While Cal/OSHA has resources and tools to assist you (go to their Heat Illness discussion and take a look at their Heat Illness e-tool), you will be smart to hire a safety consultant to assist you. Ask us for referrals.
Reporting Serious Injuries and Illnesses
Q: What is a “serious” injury or illness?
A: Serious injuries and illnesses are defined by Cal/OSHA as death and “...any injury or illness occurring in a place of employment ...
- ...which requires inpatient hospitalization for a period in excess of 24 hours for other than medical observation or...
- ...in which an employee suffers a loss of any member of the body or...
- ...suffers any serious degree of permanent disfigurement.”
Q: When do I need to report a serious injury or illness to Cal/OSHA?
A: Deaths and serious illnesses and injuries must be reported “immediately.” This means as soon as the employer knows, but no later than 8 hours after the employer knows, or could have known. Issues about timing of reporting arise frequently. If you have questions about a specific case, call us.
Q: What if I miss the deadline?
A: Don’t. Failing to report a death or serious injury or illness will lead to a citation with a $5,000.00 penalty. And only the Appeals Board has the power to reduce the penalty. That means you have to file an appeal.
Q: We had a serious injury after Cal/OSHA closed today. May I wait and report tomorrow?
A: No. Reports of deaths and serious illnesses and injuries must be made “immediately” (see above). This requirement is not affected by normal working hours. Even if Cal/OSHA does not pick up the message until the next working day, your call will be recorded and date/time stamped.
Q: An employee suffered a heart attack in the office today and died. Do I have to report this to Cal/OSHA?
A: Yes. ALL serious injuries and illnesses — and deaths — occurring in the workplace must be reported. Employers are not granted discretion to determine if the event is work-related or not.
The next question will involve an event in the company parking lot or at a company picnic. Our advice is to report even questionable events and let Cal/OSHA know you are reporting out of an abundance of caution. You may draw an inspection but at least will avoid a citation for failing to report.
Q: A Cal/OSHA inspector is on site but won’t tell me why. Don’t they have to?
A: No. Cal/OSHA inspectors may or may not tell you why they are there. If, for example, the answer may identify an informant they are forbidden by law to tell you.
Q: Do I have to consent to a Cal/OSHA inspection?
A: Technically, your business is protected by the Fourth Amendment against unreasonable searches and you can refuse entry. Practically, however, a refusal will result in Cal/OSHA obtaining a search warrant from the Superior Court and the inspector will be back the next day... with several of his or her friends.
For this reason demanding a warrant should be done only with extreme caution, and after consultation with your attorney. We do not recommend demanding a warrant except under unusual circumstances. See discussion of Bureau of Investigations below.
Further, a condition which is visible from a public space (e.g., the street or another building) and which appears to constitute an imminent threat to safety may result in an immediate inspection by Cal/OSHA without the need for consent or a warrant.
Bureau of Investigations
Q: One of the Cal/OSHA inspectors on my site is from Bureau of Investigations, or BOI. What does that mean?
A: BOI is the criminal investigation arm of Cal/OSHA. It means that they are looking to see if criminal charges against the company and one or more of your managers should be referred to the local district attorney.
You should immediately and politely decline to answer any of his or her questions until you have retained counsel. They’ll understand. You should also refuse entry or to allow an investigation to continue without a warrant, or at least time to get organized. This is the only exception to our advice to cooperate in inspections.
Notice of Intent to Issue ... (the 1BY letter)
Q: What is a “Notice of Intent to Issue...” letter all about?
A: Cal/OSHA is required to send this form letter to employers when they have concluded that one or more serious-classified citations should be issued. It must be sent at least 15 days before the citation(s) is issued and afford the employer an opportunity to respond before issuance.
Q: Do I have to respond to the 1BY?
A: No, and we do not recommend participating in this process. Any response on the form Cal/OSHA provides is considered “verified” and an admission against interest by the employer. Rest assured that the statute which created the process provides that declining to respond cannot be used later against the employer if the citation is appealed.
Please see our blogs on the 1BY for more of our advice on the history of its creation and use by Cal/OSHA.
Handling Cal/OSHA Citations and Appeals
Q: I just received citations from Cal/OSHA. What do I do?
A: First, take a deep breath. You have the right to appeal the citations.
But you only have 15 working days (that is, not counting weekends and federal and state holidays) of your receipt of the appeal, not the issuance date shown on the upper right side of the citation. This is a critical date: Miss it and the citations become final and enforceable. You will have lost any rights to contest any portion of the allegations against your company.
Q: Do I need an attorney to appeal the citations?
A: No. There is no requirement that you retain a lawyer to appeal citations. Your decision should be based on your familiarity with Cal/OSHA regulations and the appeal process; your comfort level in dealing with Cal/OSHA’s managers, experts and attorneys; the complexity of the issues; and the amount of time you can take from running your business to handle the appeal.
Losing an appeal may have a greater impact on your business than just the payment of penalties. A citation will be on your record at Fed/OSHA and available for all to see forever. And it can serve as the basis for a repeat classification (that is, the normal penalty times 5) for additional citations for the same or a similar violation within the next 5 years.
Q: How do I file an appeal?
A: The appeal process is managed by the California Occupational Safety and Health Appeals Board (OSHAB) in Sacramento. You can file your appeal over the internet, but the process can be cumbersome for first time users. We suggest that if you choose to file your own appeal (What are we? Potted plants?) you call the Board for assistance.
Q: I just made an appointment for an informal conference with Cal/OSHA. Does that stop the clock on appealing?
A: NO! Only filing an appeal, or telling the Board you intend to appeal, will stop the clock. If you choose to call and advise the Board of your intention to appeal, you will have 10 calendar days to file your appeal papers or complete the online process.
Q: How much will it cost to have an attorney handle the appeal?
A: The cost and complexity of an appeal of Cal/OSHA citations may vary as much as the difference between buying a home and buying an office building (but won’t come close to the cost of either!). Once we know the allegations and the facts Cal/OSHA is relying on, and your potential defenses, we will be able to provide you with a reasonable estimate of the time and costs involved in your appeal, and our best estimate of the likely outcome.
In other words, we won’t know until we learn a reasonable amount about your matter. But we can tell you that we have not remained in business as a premier OSHA defense firm for 35 years by over-charging our clients and achieving poor results.