By Joshua M. Henderson

This blog post is part of an occasional series on California Occupational Safety & Health issues.

California is one of 22 states and jurisdictions that has its own OSHA Plan covering private sector employers.  The federal OSHA law, of course, continues to provide a minimum level of safety, or “floor,” under which these state regulations may not fall.  But above this regulatory floor, California is generally free to regulate workplace safety and health.  And it has done so, and continues to do so, with considerable vigor.  California employers must take heed of these differences.

Take one recurring example.  Under federal law, an employer must report a multiple hospitalization within 8 hours of the work-related incident.  Specifically, the reporting obligation arises from “the in-patient hospitalization of three or more employees as a result of a work-related incident.” 

California is stricter in this regard—there is no three-employee rule.  Under Cal/OSHA, an employer must report any work-related serious injury, illness, or death no more than 8 hours “after the employer knows or with diligent inquiry would have known of the death or serious injury or illness.”  (Federal law and Cal/OSHA have nearly identical requirements for reporting of work-related fatalities)  Under exigent circumstances, the employer will have 24 hours to report the incident.  “Serious injury or illness” generally means any work-related injury or illness “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 . . . .”

Recent case law from the California Occupational Safety and Health Appeals Board has made it tougher on employers who fail to report a serious occupational injury or illness.  Unless a miscarriage of justice would result, there is an automatic $5,000 penalty for failing to report; it cannot be negotiated down.  Previously, the Appeals Board had allowed the Administrative Law Judges some discretion in reducing the penalties for failing to report.  No longer.  That discretion still exists, however, in cases in which an employer makes an untimely report, e.g., longer than 8 hours after the incident (in the absence of exigent circumstances).  Therefore, it is critical that California employers report any serious workplace injury or illness to the local district office of the Division of Occupational Safety & Health, even if it is untimely.