Employers Beware Osha Has New Enforcement Policies
The Division of Labor Standards Enforcement and Osha are changing their approach towards employers.
California has chosen to make it extremely difficult for employers to comply with both Labor Law and Cal-Osha standards. Cal-Osha has been told by Federal Osha, that it has not imposed enough serious fines on California employers during Cal-Osha's inspections. So as a result Cal-Osha is now finding a lot more serious fines, and fining employers accordingly.
This is not good news for employers because a serious fine has a lot more ramifications to it. For example, a serious fine stays on your record longer than a general fine. If there is an injury as a result of the accident it is much easier for the employee to take the employer to civil court compared to a general fine.
When an enforcement officer comes to your place of business it is at his/her discretion what the classification of the violation will be. When an employer has been assessed a safety violation by Cal-Osha, the employer should abate the hazard as quickly as possible. This is true even if the the violation is listed as a general violation.
In 2014, I was amazed when one of my clients asked me to help them get an Osha fine abated. The client had been able to abate everything but $17,000.00. Even though the client had done a good job, they still could not get anywhere with this last piece. As I said, my client asked me to help them. I told them that I would call the enforcement officer, and see what could be done.
During my conversation with the enforcement officer, I learned something that was very difficult for me to believe. The Osha enforcement officer told me of two new mindsets that Osha adapted concerning employers.
The New Mindsets are as follows:
- No company or employer has the ability to write a Safety Program that would actually be compliant.
- If by chance an employer did write a Safety Program that would be compliant, they would not be able to enforce it.
The bottom line is according the the enforcement officers I have talked to is all employers need a safety consultant to help their company comply.
One problem that employers face when it comes to Osha, is that now every employer must do what their safety program says. In times past all you had to do was have a host of safety policies in your Safety Program and that would be enough.
That is not the case today. When the enforcement officer comes to your business, he will not only want to see your safety program, but he will want to see that you have documentation proving that you are doing what your safety program says you will do.
Speaking of your Illness Injury Prevention Program, does it meet the eight standards that are required by Osha. Below are the eight standards in common everyday English.
- Have you identified your Safety Officer or committee in writing?
- Are you conducting Safety Training regularly for all employees?
- Do you have a way to Discipline or Reward Employees for their actions in the workplace?
- When New Equipment is brought into service, do you provide training?
- Are Periodic Inspections being done and documented?
- Do you have a way for Employees to Report Unsafe Work Conditions?
- Do you have a Hazard Abatement System in place?
- Record Keeping?
While this is an unofficial list here is a link to the OSHA website.https://www.dir.ca.gov/dosh/dosh_publications/IIPP.html#5
Now for just a moment let us take a look at what is going on in the state of California with Labor Law.
In California, the New Paid Sick Leave Law is causing issues for employers. This new law is very far-reaching or as I like to say it has many roots.
Some of the aspects of this law that is making it difficult for employers to comply with is as follows:
- Specific dates for posting notification to employees
- This Law has a retaliation clause
- Paid Time Off can meet the requirement for Paid Sick Leave
- Paid Sick Leave accrual must be noted on the employee's paycheck stub
Let's take just a minute, and look a little deeper into each of these aspects of this new law. Number one, by far most employers did not meet the notification requirements. Because of this if you are a small employer you now should have an employee handbook with your Paid Sick Leave Policy included in it.
If you are an employer that has an employee handbook, you should have the paid sick leave policy properly written and thoroughly explained in your employee handbook.
If you are going to change your vacation time to a PTO policy, the PTO policy must comply with all aspects of the sick leave policy. For your PTO policy to be compliant with the Paid Sick Leave Policy employees must be able to begin accruing Paid Time Off after ninety days of employment.
For many years Vacation Time or PTO has been taken in daily increments, but now employees must be able to take PTO in hourly increments if you are going to use PTO to qualify for the Paid Sick Leave Law.
While there are many more issues concerning this and other laws, there is some good news for employers here. The good news is that if you set up your Paid Time Off Properly, you no longer have to worry about the Paid Sick Leave Law.
In conclusion, I would strongly recommend that you look for a good HR Consulting Firm that can help you with both Cal-Osha and Labor Law Compliance.
When looking for an Hr Consulting/Cal-Osha compliance company I would encourage you to try to find one who not only knows what the laws are, but also knows how these laws are being enforced in the field.
Sadly knowing the laws without knowing what actions the enforcement people are taking in the field will put you the employer at an extreme disadvantage when it comes to enforcement.
So before you hire someone or some company because they seem to know a lot, take the time to find out what their track record is. Ask questions like, how many cases have you actually handled and won? Do you have a list of clients that you could give me as referrals who will state that you helped them to get the fines either reduced, or better yet made to go away because the consulting company was able to provide a good defense.