Today's Law As Amended


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AB-1277 Occupational safety and health: procedures.(2013-2014)



As Amends the Law Today


SECTION 1.

 Section 143.1 of the Labor Code is amended to read:

143.1.
 (a)  The board shall conduct hearings on such requests a hearing on a request  for a permanent variance after affected  employees or employee representatives are properly notified pursuant to subdivision (b)  and given an opportunity to appear.  be heard.  All board decisions on permanent variance requests shall be final except for any rehearing or judicial review provided for by law.
(b) An affected employee has a right to due process when a permanent variance from a standard or order is sought pursuant to Section 143. The employer shall post a notice of the variance prepared by the board and shall provide that notice by certified mail to each collective bargaining agent who represents an employee.
(c) For the purposes of this section, “affected employee” means an employee who would be affected by the grant or denial of a variance, limitation, variation, tolerance, or exemption from a standard or order sought by an employer pursuant to Section 143.

SEC. 2.

 Section 148.3 is added to the Labor Code, to read:

148.3.
 In adjudicating appeals, the appeals board shall do both of the following:
(a) Apply the regulations adopted by the department regarding occupational safety and health.
(b) Liberally construe the provisions of Division 5 (commencing with Section 6300), as well as the standards and orders adopted by the Division of Occupational Safety and Health or the department pursuant to that division, and the standards and orders adopted by the Occupational Safety and Health Standards Board pursuant to Chapter 6 (commencing with Section 140), in order to promote safe and healthy working conditions for the working men and women of this state.

SEC. 3.

 Section 148.5 of the Labor Code is amended to read:

148.5.
 A decision of the appeals board is final, except for any rehearing or judicial review as permitted by Chapter 4 7  (commencing with Section 6600) of Part 1 of Division 5.

SEC. 4.

 Section 6309 of the Labor Code is repealed.

6309.
 (a) If the division learns or has reason to believe that an employment or place of employment is not safe or is injurious to the welfare of an employee, it may, on its own motion, or upon complaint, summarily investigate the employment or place of employment, with or without notice or hearings. However, if the division receives a complaint from an employee, an employee’s representative, including, but not limited to, an attorney, health or safety professional, union representative, or government agency representative, or an employer of an employee directly involved in an unsafe place of employment, that their employment or place of employment is not safe, it shall, with or without notice or hearing, summarily investigate the complaint as soon as possible, but not later than three working days after receipt of a complaint charging a serious violation, and not later than 14 calendar days after receipt of a complaint charging a nonserious violation. The division shall attempt to determine the period of time in the future that the complainant believes the unsafe condition may continue to exist, and shall allocate inspection resources so as to respond first to those situations in which time is of the essence. For purposes of this section, a complaint is deemed to allege a serious violation if the division determines that the complaint charges that there is a realistic possibility that death or serious physical harm could result from the actual hazard created by a condition that exists, or from one or more practices, means, methods, operations, or processes that have been adopted or are in use in a place of employment. When a complaint charging a serious violation is received from a state or local prosecutor, or a local law enforcement agency, the division shall summarily investigate the employment or place of employment within 24 hours of receipt of the complaint. All other complaints are deemed to allege nonserious violations. The division may enter and serve any necessary order relative thereto. The division is not required to respond to a complaint within this period where, from the facts stated in the complaint, it determines that the complaint is intended to willfully harass an employer or is without any reasonable basis.
(b) The division shall keep complete and accurate records of all complaints, whether verbal or written, and shall inform the complainant, whenever their identity is known, of any action taken by the division in regard to the subject matter of the complaint, and the reasons for the action, within 14 calendar days of taking any action. The records of the division shall include the dates on which any action was taken on the complaint, or the reasons for not taking any action on the complaint. The division shall, pursuant to authorized regulations, conduct an informal review of any refusal by a representative of the division to issue a citation with respect to an alleged violation. The division shall furnish the employee or the representative of employees requesting the review a written statement of the reasons for the division’s final disposition of the case.
(c) The name of a person who submits to the division a complaint regarding the unsafe condition of an employment or place of employment shall be kept confidential by the division, unless that person requests otherwise.
(d) The division shall annually compile and release on its internet website data pertaining to complaints received and citations issued.
(e) The requirements of this section do not relieve the division of its requirement to inspect and assure that all places of employment are safe and healthful for employees. The division shall maintain the capability to receive and act upon complaints at all times. However, the division shall prioritize investigations of reports of accidents involving death or serious injury or illness and complaints that allege a serious violation over investigations of complaints that allege a nonserious violation.

SEC. 5.

 Section 6309 is added to the Labor Code, to read:

6309.
 (a) If the division learns or has reason to believe that an employment or place of employment is not safe or is injurious to the welfare of an employee, the division, on its own motion, or upon complaint, may summarily investigate the same with or without notice or hearings.
(b) The division shall investigate and conduct an onsite inspection of the employment or place of employment as soon as possible, but not later than three working days after receipt of a complaint charging a serious violation, except as provided in subdivision (e), and shall investigate and may conduct an onsite inspection not later than 14 calendar days after receipt of a complaint charging a nonserious violation, from the following:
(1) An employee or former employee.
(2) An employee’s or former employee’s representative, including, but not limited to, an attorney; a union, workers’ organization, or community organization; or a family member of an employee or former employee.
(3) A health or safety professional.
(4) A government agency representative.
(5) A joint labor-management committee established pursuant to the federal Labor Management Cooperation Act of 1978 (Section 175a of Title 29 of the United States Code).
(6) An employer of an employee who is or may be exposed to an unsafe or unhealthful condition in his or her employment or at his or her place of employment.
(c) The division may investigate and conduct an onsite inspection of a serious violation charged in a complaint from a person other than those described in paragraphs (1) to (6), inclusive, of subdivision (b) before investigating any nonserious violation in order to best effectuate the purposes of this division.
(d) For purposes of this section, a complaint is deemed to allege a serious violation if the division determines that the complaint charges that there is a realistic possibility that death or serious physical harm could result from a condition that exists, or from one or more practices, means, methods, operations, or processes that have been adopted or are in use in a place of employment. All other complaints are deemed to allege nonserious violations.
(e) If a complaint charging a serious violation is received from a state or local prosecutor, or a local law enforcement agency, the division shall investigate and conduct an onsite inspection of the employment or place of employment within 24 hours of receipt of the complaint.
(f) The division is not required to respond to a complaint within the time period required by subdivision (b) if the division determines, from the facts stated in the complaint, that the complaint is intended to willfully harass an employer or is without any reasonable basis.
(g) The division shall attempt to determine the period of time in the future that the complainant believes the unsafe or unhealthful condition may continue to exist, and shall allocate inspection resources so as to respond first to those situations in which time is of the essence.
(h) The division may enter and serve any necessary order relative to the complaint.
(i) The division shall keep complete and accurate records of all complaints, whether oral or written, and shall inform the complainant, whenever his or her identity is known, of any action taken by the division in regard to the subject matter of the complaint, and the reasons for the action, within 14 calendar days of taking any action. The records of the division shall include the dates on which any action was taken on the complaint, or the reasons for not taking any action on the complaint. The division, pursuant to authorized regulations, shall conduct an informal review of any refusal by a representative of the division to issue a citation with respect to an alleged violation. The division shall furnish the employee or the representative of employees requesting the review a written statement of the reasons for the division’s final disposition of the case.
(j) The division shall keep confidential the name of a person who submits to the division a complaint regarding the unsafe condition of an employment or place of employment, unless that person requests otherwise.
(k) The division shall annually compile and release on its Internet Web site the data pertaining to complaints received and citations issued.
(l) The requirements of this section do not relieve the division of its requirement to inspect and ensure that all places of employment are safe and healthful for employees. The division shall maintain the capability to receive and act upon complaints at all times.

SEC. 6.

 Section 6317 of the Labor Code is amended to read:

6317.
 (a) If, upon inspection or investigation, the division believes that an employer has violated Section 25910 of the Health and Safety Code, this division, Article 4 (commencing with Section 3550) of Chapter 2 of Part 1 of Division 4, or any standard, rule, order, or regulation established pursuant to Chapter 6 (commencing with Section 140) of Division 1, or any standard, rule, order, or regulation adopted pursuant to this code regarding occupational safety and health, it shall, with reasonable promptness, issue a citation to the employer.
If,  (b)  upon inspection or investigation, the division believes that an employer has violated Section 25910 of the Health and Safety Code or any standard, rule, order, or regulation established pursuant to Chapter 6 (commencing with Section 140) of Division 1 of the Labor Code, or any standard, rule, order, or regulation established pursuant to this part, it shall with reasonable promptness issue a citation to the employer.  Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the code, standard, rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the alleged violation. The period specified for abatement shall not commence running until the date the citation or notice is received by certified mail and the certified mail receipt is signed, or if not signed, the date the return is made to the post office. If the division officially and directly delivers the citation or notice to the employer, the period specified for abatement shall commence running on the date of the delivery.
A (c)  (1)   “notice”  The division may issue a notice  in lieu of citation may be issued  a citation  with respect to violations found in an inspection or investigation which that  meet either of the following requirements:
(1) (A)  The violations do not have a direct relationship upon the health or safety of an employee.
(B) The violations do not have an immediate relationship to the health or safety of an employee, and are of a general or regulatory nature.
(2) The violations do not have an immediate relationship to the health or safety of an employee, and are of a general or regulatory nature.  A notice in lieu of a citation may be issued only if the employer agrees to correct the violations within a reasonable time, as specified by the division, and agrees not to appeal the finding of the division that the violations exist. A notice issued pursuant to this paragraph shall have the same effect as a citation for purposes of establishing repeat violations or a failure to abate. Every notice shall clearly state the abatement period specified by the division, that the notice may not be appealed, and that the notice has the same effect as a citation for purposes of establishing a repeated violation or a failure to abate. The employer shall indicate agreement to the provisions and conditions of the notice by his or her signature on the notice.
A (3)  (A)   notice shall not  Under no circumstances shall a notice  be issued in lieu of a citation if the violations are serious, repeated, willful, or arise from a failure to abate.
(B)  The director shall prescribe guidelines for the issuance of these notices. a notice in lieu of citation. 
The  (C)  division may impose a civil penalty against an employer as specified in Chapter 4 (commencing with Section 6423) of this part.  A notice in lieu of a citation may shall  not be issued if the number of first instance violations found in the inspection (other than serious, willful, or repeated violations) is 10 or more violations.
(d)  (1)   A  No  citation or notice shall not  be issued by the division more than six months after the occurrence of the violation. For purposes of issuing a citation or notice for a violation of subdivision (b) or (c) of Section 6410, including any implementing related regulations, an “occurrence” continues until it is corrected, or the division discovers the violation, or the duty to comply with the violated requirement ceases to exist. Nothing in this paragraph is intended to alter the meaning of the term “occurrence” for violations of health and safety standards other than the recordkeeping requirements set forth in subdivision (b) or (c) of Section 6410, including any implementing related regulations. for a given violation or violations after six months have elapsed since occurrence of the violation. 
(2) The division may impose a civil penalty against an employer as specified in Chapter 4 (commencing with Section 6423) of this part.
(3)  The director shall prescribe procedures for the issuance of a citation or notice.
(4)  The division shall prepare and maintain records capable of supplying an inspector with previous citations and notices issued to an employer.

SEC. 7.

 Section 6409.1 of the Labor Code is amended to read:

6409.1.
 (a) Every employer shall file a complete report of every occupational injury or occupational illness, as defined in subdivision (b) of Section 6409, of to  each employee which that  results in lost time beyond the date of the injury or illness, or which that  requires medical treatment beyond first aid, with the Department of Industrial Relations or, if an insured employer, with the insurer, on a form prescribed for that purpose by the department. A report shall be filed concerning each injury and illness which that  has, or is alleged to have, arisen out of and in the course of employment, within five days after the employer obtains knowledge of the injury or illness. Each report of occupational injury or occupational illness shall indicate the social security number of the injured employee. In the case of an insured employer, the insurer shall file with the division division,  immediately upon receipt, a copy of the employer’s report, which report that  has been received from the insured employer. In the event an employer has filed a report of injury or illness pursuant to this subdivision and the employee subsequently dies as a result of the reported injury or illness, the employer shall file an amended report indicating the death with the department or, if an insured employer, with the insurer, within five days after the employer is notified or learns of the death. A copy of any amended reports received by the insurer shall be filed with the division immediately upon receipt.
(b) In every case involving a serious injury or illness, or death, in addition to the report required by subdivision (a), a report shall be made immediately  immediately, but no longer than eight hours after the employer knew or should have known of the death or serious illness,  by the employer to the Division of Occupational Safety and Health by telephone or through a specified online mechanism established by the division for this purpose. Until the division has made such an online mechanism available, the employer shall be permitted to make the report required by this subdivision by telephone or email. An employer who violates this subdivision may be assessed a civil penalty of not less than five thousand dollars ($5,000).  telephone, fax, or other electronic means approved by the division. An employer who violates this subdivision shall be assessed a civil penalty of five thousand dollars ($5,000) that may be adjusted pursuant to subdivision (d) either by the division in a settlement agreement between the employer and the division, or by the Occupational Safety and Health Appeals Board when approving a settlement agreement or when making a finding.  Nothing in this subdivision shall be construed to increase affect  the maximum civil penalty,  civil penalty that may be imposed  pursuant to Sections 6427 to 6430, inclusive, that may be imposed for a violation of this section. inclusive. 
(c) When making a report pursuant to subdivision (b), the employer shall inform the division of all information in its possession relating to the time, location, and circumstances of the incident. The employer shall also inform the division if the employee subsequently dies as a result of the reported injury or illness, within five days after the employer is notified or learns of the death.
(d) If the employer has never been subject to an inspection or investigation by the division, the civil penalty assessed pursuant to subdivision (b) may be adjusted according to the following:
(1) The penalty may be reduced if there is documentation in the division file or in the record of the appeals board of any of the following:
(A) The employer has 10 or fewer employees.
(B) The employer delayed in reporting to the division by no more than 48 hours.
(C) The employer delayed in reporting to the division by more than 48 hours or failed to report to the division, but states under penalty of perjury that it did timely report to its workers’ compensation carrier or to a state, county, or local fire or police agency, and that it was informed by that entity that reporting to that entity was sufficient to comply with the requirement to report to the division.
(2) The penalty may be increased if there is a finding on the record of any of the following:
(A) The employer failed to report a death.
(B) The employer did not provide documentation that the injured or ill employee received prompt and adequate first aid, medical care, or both.
(C) The employer did not provide evidence that it had an effective injury and illness prevention program.
(D) The employer previously failed to report a serious injury or illness, or death.
(E) The employer interfered with the division’s investigation by withholding evidence or witnesses or materially altering the worksite.
(3) Additional penalty reductions afforded by regulations promulgated pursuant to subdivision (c) of Section 6319 shall not apply to the adjustment of the civil penalty assessed pursuant to subdivision (b).
(4) The penalty shall not be decreased if the division determines that the failure to report or report timely impaired its investigation or that the employer did not ensure that the injured or ill employee received prompt and adequate first aid, medical care, or both.
(5) The adjusted civil penalty shall not be less than two thousand five hundred dollars ($2,500).
(e) In addition to the penalty provided in this section, an employer who willfully or repeatedly fails to report, or to report timely, an occupational injury or occupational illness, or a death, as required by subdivision (b), or an employer who intentionally interferes with the division’s investigation by withholding evidence or witnesses or materially altering the worksite, shall be subject to the penalties set forth in Section 6429.

SEC. 8.

 Section 6450 of the Labor Code is amended to read:

6450.
 (a) An employer may apply to the division for a temporary order granting a variance from an occupational safety or health standard. The temporary order shall be granted only if the employer files an application which meets the requirements of Section 6451, and establishes all of the following:
(a) (1)  Any employer may apply to the division for a temporary order granting a variance from an occupational safety or health standard. Such temporary order shall be granted only if the employer files an application which meets the requirements of Section 6451, and establishes that (1) he  The employer  is unable to comply with a standard by its effective date because of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the standard or because necessary construction or alteration of facilities cannot be completed by the effective date, (2) he is taking all available steps to safeguard his employees against the hazards covered by the standard, and (3) he has an effective program for coming into compliance with the standard as quickly as practicable. date. 
(2) The employer is taking all available steps to safeguard his or her employees against the hazards covered by the standard.
(3) The employer has an effective program for coming into compliance with the standard as quickly as practicable.
(b) Any A  temporary order issued under this section shall prescribe the practices, means, methods, operations, and processes which the employer must adopt and use while the order is in effect and state in detail his or her  program for coming into compliance with the standard. Such a  A  temporary order may be granted only after notice to employees  affected employees pursuant to subdivision (c)  and an opportunity for a hearing. However, the division may issue one interim order for a temporary variance upon submission of an application showing that the employment or place of employment will be safe for employees pending a hearing on the application for a temporary variance. No A  temporary order may not  be in effect for longer than the period needed by the employer to achieve compliance with the standard or one year, whichever is shorter, except that such  an order may be renewed not more than twice provided that the requirements of this section are met and an application for renewal is filed prior to the expiration date of the order. No single  A  renewal of an order may not  remain in effect for longer than 180 days.
(c) An affected employee has a right to due process when a temporary variance from a standard or order is sought pursuant to this section. The employer shall post a notice of the variance prepared by the board and shall provide that notice by certified mail to each collective bargaining agent who represents an employee.
(d) For the purposes of this section, “affected employee” means an employee who would be affected by the grant or denial of a variance, limitation, variation, tolerance, or exemption from a standard or order sought by an employer pursuant to this section.

SEC. 9.

 Section 6600.1 is added to the Labor Code, to read:

6600.1.
 Any affected employee may appeal the terms and conditions of abatement in a citation or notice pursuant to Section 6317 or order pursuant to Section 6308. A notice of appeal shall be filed with the division or the appeals board within 15 working days of the issuance of a citation or order, by any of the following:
(a) An affected employee, individually or through his or her designated representative, or if the affected employee is deceased, then the employee’s surviving spouse or domestic partner, surviving issue, or personal representative as defined in Section 58 of the Probate Code.
(b) A union that represents an affected employee.
(c) A union that has a collective bargaining agreement with the cited or ordered employer.
(d) For purposes of this chapter, “affected employee” means an employee who is exposed to or who, due to assigned work in the vicinity, may be exposed to an unsafe or unhealthful condition out of circumstances, conditions, practices, or operations that are the basis of a citation issued by the division to any employer, whether or not the direct employer of the employee.

SEC. 9.SEC. 10.

 Section 6601 of the Labor Code is amended to read:

6601.
 If If,  within 15 working days from receipt of the citation or notice of civil penalty issued by the division, the employer fails to notify the appeals board that he  the employer  intends to contest the citation or notice of proposed penalty, and no notice contesting the abatement period  terms or conditions of the abatement  is filed by any affected  employee or representative of the  an affected  employee within such that  time, the citation or notice of proposed penalty shall be deemed a final order of the appeals board and not subject to review by any court or agency. The 15-day period may be extended by the appeals board for good cause.

SEC. 10.SEC. 11.

 Section 6601.5 of the Labor Code is amended to read:

6601.5.
 If, within 15 working days from receipt of a special order, order  or action order by the division, the employer fails to notify the appeals board that he or she  the employer  intends to contest the order, and no notice contesting the abatement period  terms or conditions of the abatement  is filed by any affected  employee or representative of the  an affected  employee within that time, the order shall be deemed a final order of the appeals board and not subject to review by any court or agency. The 15-day period may be extended by the appeals board for good cause.

SEC. 11.SEC. 12.

 Section 6602 of the Labor Code is amended to read:

6602.
 If an employer notifies the appeals board that he or she intends to contest a citation issued under Section 6317, or notice of proposed penalty issued under Section 6319, or order issued under Section 6308, or if, within 15 working days of the issuance of a citation or order any affected  employee or representative of an affected  employee files a notice with the division or appeals board alleging that the period of time fixed in the citation or order for the abatement of the violation is unreasonable,  contesting the terms or conditions of the abatement,  the appeals board shall afford an opportunity for a hearing. The appeals board shall thereafter issue a decision, based on findings of fact, affirming, modifying modifying,  or vacating the division’s citation, order, or proposed penalty, or directing citation or order, and may modify the proposed penalty if the penalty modification would not violate a requirement of this code or a regulation of the department, or direct  other appropriate relief.

SEC. 13.

 Section 6602.5 is added to the Labor Code, to read:

6602.5.
 The appeals board, upon a timely request as set forth in its regulations, shall permit the following to participate as a party in an appeal:
(a) An affected employee, individually or through his or her designated representative, or if the affected employee is deceased, then the employee’s surviving spouse or domestic partner, surviving issue, or personal representative as defined in Section 58 of the Probate Code.
(b) A union that represents an affected employee.
(c) A union that has a collective bargaining agreement with the cited or ordered employer.

SEC. 14.

 Section 6602.6 is added to the Labor Code, to read:

6602.6.
 Parties shall have the right to participate in settlement discussions between the division and the employer at any formal or informal prehearing conference or discussion prior to or during the hearing, may express an objection, and shall be timely informed of any final settlement reached between the employer and the division.

SEC. 14.SEC. 15.

 Section 6603 of the Labor Code is amended to read:

6603.
 (a) The rules of practice and procedure adopted by the appeals board shall be consistent with Article 8 (commencing with Section 11435.05) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of, and Sections 11507, 11507.6, 11507.7, 11513, 11514, 11515, and 11516 of, the Government Code, and shall provide affected employees or representatives of affected employees an opportunity to participate as parties to a hearing under Section 6602. The rules of practice and procedure also shall provide for the scheduling of hearings in a manner designed to minimize inconvenience to the division and all parties and witnesses who are required to attend the hearings, and for the completion of the hearings without significant lapses in time if the hearings are not completed within the scheduled time. 
(b) The superior courts shall have jurisdiction over contempt proceedings, as provided in Article 12 (commencing with Section 11455.10) of Chapter 4.5 of Part 1 of Division 3 of Title 2 of the Government Code.

SEC. 15.SEC. 16.

 Section 6614 of the Labor Code is amended to read:

6614.
 (a) At any time within 30 days after the service of any final order or decision made and filed by the appeals board or a hearing officer, any party aggrieved directly or indirectly by any final order or decision, made and filed by the appeals board or a hearing officer under any provision contained in  this division, may petition the appeals board for reconsideration in respect to any matters determined or covered by the final order or decision and specified in the petition for reconsideration. Such The  petition shall be made only within the time and in the manner specified in this chapter.
(b) At any time within 30 days after the service of any final order or decision made and filed by the appeals board, any person aggrieved directly or indirectly by any final order or decision made and filed by the appeals board under this division may petition the appeals board for reconsideration in respect to any matters determined or covered by the final order or decision and specified in the petition for reconsideration. The petition shall be made only within the time and in the manner specified in this chapter.
(b) (c)  At any time within 30 days after the filing of an order or decision made by a hearing officer and the accompanying report, the appeals board may, on its own motion, grant reconsideration.

SEC. 17.

 Section 6626.5 is added to the Labor Code, to read:

6626.5.
 (a) A person who was not a party to the case prior to the appeals board issuing the decision after reconsideration who plans to seek judicial review of a decision pursuant to Section 6627 shall provide a written notice to the appeals board, including a statement that the person intends to seek judicial review of the decision, a brief statement regarding the nature of the challenge to the decision after reconsideration, and a request that the appeals board modify or rescind its decision.
(b) The notice and statement shall be filed with the appeals board within 30 days of the appeals board order or decision and shall toll, for 30 days or until the board acts, whichever is sooner, both the finality of the decision after reconsideration and the filing deadline set forth in Section 6627. After receiving notice, the appeals board may either rescind, modify, and reissue the decision after reconsideration, or deny the request either summarily or in writing with the reasons stating the basis for the denial. The appeals board’s failure to act on the notice within 30 days shall be deemed a summary denial. An affected person shall not be required to file more than one notice prior to seeking judicial review.
(c) Nothing in this section is intended to eliminate or limit any other exceptions to any requirement under law that administrative remedies be exhausted before judicial action is sought.
SEC. 18.
 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.