E-Blasts

Last week, a California Appeals Court answered a narrow question as to whether the interior of a non-air-conditioned bus can be deemed an “outdoor place of employment” for the purposes of the California’s heat illness prevention regulations. The Appeals Court, which agreed with the decision of the lower court, held that, “outdoor” is defined as ‘out of doors’ or ‘not in a building" and that if “an enclosure or structure does not provide sufficient environmental protections to be considered ‘indoor’ then it is ‘outdoor.’”

As most employers know, under California Code of Regulation, title 8, section 3395, employers with outdoor places of employment are required to put in writing and implement an effective heat illness prevention plan, which includes, but is not limited to, procedures for providing sufficient water, access to shade, and high-heat. In November 2007, Cal OSHA cited AC Transit, which operates buses throughout Alameda County and adjoining areas, for violation of heat illness prevention laws with respect to the operation of non-air-conditioned buses for (1) failure to supply adequate drinking water to drivers; (2) failure to make shade continuously available for drivers; and (3) failure to develop heat illness procedures and related training for employees and supervisors. During relevant timeframes, AC Transit employed between 1,200 and 1,900 drivers and operated 695 buses, only 20 percent of which were air-conditioned.

On Tuesday, the Department of Industrial Relations published a news release announcing that the Division of Occupational Safety and Health of California (“Cal/OSHA”) cited marine cargo handler SSA Pacific Inc. for willful and serious safety violations after the investigation of a fatal forklift accident in San Diego. According to the news release, an employee was driving a forklift when he collided with a concrete column and suffered fatal injuries after being thrown from the forklift while not wearing a seatbelt. Additionally, the investigation revealed that multiple safety devices on the forklift had been disabled, including the seatbelt warning buzzer and the mast interlock system that should disconnect power from the hydraulic lift when the operator is not in the seat.

In 2016, when the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued its “Improve Tracking of Workplace Injuries and Illnesses” rule that required certain employers to submit injury/illness data electronically, employers in state-plan states like California were not required to comply until their states issued their own rules. California employers covered by Cal/OSHA were not yet subject to this rule, as we reported here, until now.

On February 8, 2018, the California Supreme Court issued a long-awaited opinion in the Solus Industrial Innovations, LLC case. The opinion is available here. In that case, the employer was a plastics manufacturer in Orange County. In 2007, it installed an electric water heater designed for residential use in its facility.  Two years later, the water heater exploded, killing two employees. Cal/OSHA investigated the fatalities, determined the explosion was caused by “manipulation and misuse” of the water heater, and cited the employer for five violations of occupational safety and health regulations.

The California Department of Industrial Relations issued a news release on behalf of Cal/OSHA on May 8, 2018, reminding employers in and around San Bernadino, Palm Springs, Indio, and El Centro to protect outdoor workers from heat illness, as the temperatures in those areas are expected to reach triple digits today through Thursday, which will trigger employers’ obligations to comply with California’s Heat Illness Prevention guidelines. You can read the news release here.

In accordance with Cal/OSHA general safety orders, employers are required to maintain first-aid materials readily available for employees on every job. This is not a particularly onerous requirement given the prevalence of comprehensive commercial first aid kids.  However, what many employers may not know is that the first-aid materials must be approved by a consulting physician.  See California Code of Regulations, Title 8, Section 3400.  Buying a standard, commercially available and comprehensive first aid kit is not sufficient to satisfy a company’s legal obligations.  And although in the past this may not have been a requirement that was strictly enforced, according to the Ventura County Agricultural Association, there have been reports of increased Cal/OSHA citations issued for failure to provide Cal/OSHA with proof of a physician’s review and approval of the first-aid kit. While there have been efforts to re-write this general safety order to not require physician approval of the first-aid kit, the current law still requires it, and apparently OSHA is still enforcing it.

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