from Ted Schwartz, Safety Manager, WWW.HRIDEAS.COM
While giving some acknowledgement to Cal/OSHA's many accomplishments in regulation and enforcement, Fed-OSHA in a sweeping audit released today identified a laundry list of areas that it says the state safety agency and its associated Boards needs to clean up.
The Feds reserved harshest criticism for the Candice Traeger lead Cal/OSH Appeals Board even suggesting that the Division of Occupational Safety and Health (DOSH) go to court to force the board to stop slashing penalties, disallowing serious violations and reducing penalties on ﾧ342(a) (reporting) violations.
Fed-OSHA initiated audits of all state-plan states after a series of embarrassing deficiencies were uncovered in the Nevada OSHA program, in the wake of numerous fatalities on construction projects in Las Vegas. The Feds' criticism of Cal/OSHA was tame in comparison to what it found in Hawaii, where funding problems apparently have decimated that OSHA program. If that state can't present a "reasonable strategy" to improve, Fed-OSHA says it might take over the program.
Among the findings of the California audit:
- DOSH failed to respond to complaints in a timely fashion in almost 10% of the cases reviewed.
- Cal/OSHA may not have communicated with victims' families concerning its investigations in as many as 23 cases.
- The division is not identifying industries where serious hazards exist (an assertion that DOSH rejects).
- The Cal/OSHA policy on classifying serious violations does not match the federal policy, resulting in some cases not being properly classified as serious.
- When determining repeat violations, California does not consider the employer's statewide history, as Fed-OSHA does.
- More than 200 serious/willful/repeat violations DOSH identified were not timely abated.
- State adoption of federal regulatory changes has not been timely in some cases.
- There are "substantive gaps" in training for new hires at DOSH.
- The Appeals Board is not defining "serious hazard" or interpreting "substantial probability" consistent with Fed-OSHA interpretations, and its rules on requiring expert testimony to establish serious violations "far exceeds well-settled" federal law.
- DOSH is not making enough use of writs of mandate to challenge Appeals Board decisions that result in loss of citations, classification changes and penalty reductions. The retention rate of $5,000 penalties under ﾧ342(a) citations is too low, something Fed-OSHA says DOSH should challenge in court.
The Department of Industrial Relations (DIR), in its initial response to the audit findings, said it is working to correct legitimate problems, but many of the criticisms are rehashes of already identified deficiencies. The audit "falls short in many areas and ignores critical elements of the Cal/OSHA program that make it a successful and unique model for other states," DIR Director John Duncan said in his response.
Fed-OSHA doesn't appear to understand what Cal/OSHA is trying to accomplish here and made a number of errors in the audit, DOSH Chief Len Welsh adds.
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Ted Schwartz, Safety Manager, WWW.HRIDEAS.COM can be reached at Bishop Ranch 2, 2680 Bishop Avenue, Suite 126, San Ramon, CA 94583. Main: 925.556.4404
Fax to email: 925.359.1470.