Filing an Appeal – Employer has 15 days!

If you wish to contest any portion of your citation(s), you must submit a Notice of Intent to Contest in writing to the OSHA area office within 15 working days after receipt of the Citation and Notification of Penalty.  You must “appeal” each item you wish to appeal (discuss – contest), failure to list an issue, Cal/OSHA will consider the matter closed and you will NOT be able to discuss the issues.  (The OSHAB will support this.)

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Filing an Appeal

Employers may appeal a citation and notification of penalty, notification of failure to abate, special order, or order to take special action.  The Employer has 15 working days from receipt of one of these documents to file an appeal.

If an appeal is filed after the deadline of 15 working days, the appeals board may accept the appeal only upon a showing of good cause for the late filing. Good cause for a late appeal generally means circumstances beyond one’s control, which could not have been reasonably anticipated.

An employer may appeal the existence or the classification of the violation alleged in a citation, the reasonableness of the abatement date, the reasonableness of the changes required by the Division of Occupational Safety and Health, and the amount of any proposed civil penalty. An employee or employee representatives may appeal the reasonableness of an abatement date.

Affected employees may request third party status to participate in an appeal filed by an employer.

An appeal maybe initiated by a communication to the appeals board ‘s Sacramento office by telephone, fax, or mail. An appeal is perfected when signed, completed appeal form (see forms below) is received along with the statutory grounds upon which the appeal is based, the reasons for the appeal, and the issues to be raised.

When the appeals board receives a signed, completed appeal form, it is reviewed for timeliness and assigned a docket number. Thereafter, the docket number must appear on all communications with the appeals board.

OSHAB Contact information:

Toll-free number: (877) 252-1987

Telephone number: (916) 274-5751

Fax number: (916) 274-5785

Address: 2520 Venture Oaks Way, Suite 300, Sacramento, CA 95833

OSHAB APPEAL FORM Note: You have a total of 15 working days from receipt of a citation to file an appeal. Failure to file a completed form may result in dismissal of the appeal. Late appeals will not be accepted unless good cause is shown:   Source: OSHAB APPEAL FORM

The Appeal Form

https://www.dir.ca.gov/oshab/appealform.pdf

The Appeals form was revised in May 2008. It is available for downloading in Adobe Acrobat 5.0 format and can be filled out and printed from your computer.

From the website, the form has a link for instructions on how to use the new appeal form: appeal form instructions

Editorial comments:  Keeping in mind Cal/OSHA enforcement is an agency that is mandated to conduct workplace inspections and issue citations for all violative conditions observed. 

Cal/OSHA priorities are to investigate workplace accidents (injury& illnesses), employee complaints, Program (High Hazard) inspections, Special Enforcements “Sweeps”.

Cal/OSHA inspections results in one or more citations being issued the majority of the time. Cal/OSHA has 6 months for the date the inspection is opened, to the citation to be issued.  Citations usually are issued between 45-90 days.

Cal/OSHA enforcement is NOT a consultation service, nor can the CSHO’s give recommendations to correct workplace hazards.  

Note: Cal/OSHA has a Consultants group, separate from the Cal/OSHA Enforcement department.

Most Safety Professional advise Employers to file an appeal within the 15 days regardless of the conditions of the citation to secure your rights (of appeal – discussion).  You may “settle” at any time after you have filed the appeal. 

If you have an “open” on-going OSHA Inspection, you should have professional assistance assisting you with the process.  Managing the “inspection” (while it is in progress) will likely be beneficial. 

Important issues employers must consider:

Submitting Safety Programs 

Submitting Incident (accident) reports (RCA)

Statements to OSHA

Citations on the employer’s record: Repeat and Willful cations within 5 years should another “like” citation be issued.

We can help you through the process and assist with any required abatements and the Appeals process

Source:  Cal/OSHA Website

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As the year is rapidly coming to an end, OSHA, Cal/OSHA will be preparing their list of the Top Citations issued.  Once the stats are published, most of the various industry “safety” sources will publish these lists.  Prior to these reports being released, I’d like to share my predictions for the “Top 10” violative conditions cited for 2019.

 (Fed OSHA)

• Fall protection
• Machine guarding.
• Respiratory protection.
• Control of Hazardous Energy (Lock-out/Tag-out).
•      Powered industrial trucks (Forklifts).
• Scaffolds
• Ladders.
• Electrical
• Hazard communication.
• Training

Accidents reported and investigated / reported by OSHA (Fed) will likely involve falls, stuck-by, electrical shock and engulfment.

My predictions for Cal/OSHA are the following and likely in this order:

1. Injury, Illness Prevention Program (IIPP) §3203 General Industry
2. Injury, Illness Prevention Program (IIPP) §1509 Construction Industry
3. Heat Injury Illness Program (HIIP) §3395
4. Fire Extinguisher §6151
5. Powered Industrial Truck – Operator Training §3668
6. OSHA 300 Log §14300.32
7. OSHA 300 Log §14300.40
8. Hazardous Communication (HAZCOM) §5194
9. Control of Hazardous Energy (LO/TO) §3314
10. Machine Guarding [various]

Cal/OSHA reported-citied accidents will be mostly fall related, confined space entry and a few involving electric shock.

I have so much faith in my predictions, I will go one step further and identify the actually citation number issued for each area noted in my prediction.

1. IIPP  §3203 General Industry
   1. §3203(a) failed to have an effective program
   1. §3203(b)(1) – failure to maintain inspection records
   1. §3203(a)(4)- no procedures for identifying and evaluating work place hazards including scheduled periodic inspections to identify unsafe conditions and work practices.
   1. §3203(a)(7) – Failure to provide training

• IIPP §1509 Construction Industry
  • §1509(a) failure to have an effective program
  • §1509(b) failure to have a written code of safe practices
  • §1509(c) failure to “post”, provide and or make available the CoSP. 
  • §1509(d) failure to conduct “periodic” meeting (no documentation)
  • §1509(e) failure to conduct “toolbox” or “tailgate” safety meetings, or equivalent, with their crews at least every 10 working days to emphasize safety. (no documentation)
• HIIP §3395 (No program or program not updated)
  • §3395 (e) No or failure to make available High-heat procedures.
  • §3395 (e) (5) No or failure to document a “Pre-shift meeting” addressing heat procedures.
  • §3395 (h) (1) No or not updated training (heat procedures).
• Fire Extinguisher §6151
  • § 6151(e)(2) Monthly Inspections
• Powered Industrial Truck – Operator Training §3668
  • Only drivers authorized by the employer and trained in the safe operations of industrial trucks or industrial tow tractors pursuant to Section 3668 shall be permitted to operate such vehicles.
  • §3668(t)(7) Drivers shall check [“inspect”] the vehicle at the beginning of each shift, and if it is found to be unsafe, the matter shall be reported immediately……
• OSHA 300 log §14300.32
  • §14300.32(a)(1) verify that the entries are complete and accurate
  • §14300.32(a)(3) certify the annual summary
• OSHA 300 Log §14300.40
  • §14300.40(a) failure to provide to OSHA 300 logs within 4 hours
• HAZCOM §5194 Hazardous Communication
• §5194(e)(1) Failure to develop and implement a written hazard communication program
• §5194(e)(1)(A) Failure to maintain a list of the hazardous substances
• §5194(h) (1) Failure to provide employees with information/training of hazardous substances in the workplace.
• LO/TO §3314 Control of Hazardous Energy
  • §3314(g) Failure to develop a hazardous energy control procedure
  • §3314(g)(2)(A) Failure to develop separate procedural steps for each machine/equipment
• Machine Guarding [various]
  • §4051(a) Failure to Projecting shaft ends
  • §4070(a) Failure to protect moving parts
  • §4075(a) Failure to rears, sprockets and sprocket chain drains
  • §4084(b)

[ref: 4310(a)(1) Failure to guide saw or knife blade

>ü  §4207(a)91) Failure to prevent entry of hands or fingers into the point of operation

• §3328(d) Failure to ensure that machinery and equipment is restrained so as to prevent walking or moving

I ask that you keep these predictions handy and review them in January when the various safety journals, blogs and other sources publish the official annual stats.  Some of you will be surprise by just how accurate my predictions are.  Though the order may be a little off, the subject matter (items cited) will be spot on.  

Before you ask, no I’m not psychic nor do I have a crystal ball.  Those that have been in the business of safety-compliance awhile will attest that these predictions are likely spot on.  The fact of the matter is all of these are on the list of “Top Ten” year after year after year.

Reviewing these “findings” (OSHA Top Ten) can be useful to employers as a basic “what to look for” when inspecting their workplace, ensuring these violations (citations issued) are not an issue.

Keeping in the mind the ultimate goal is to provide a safe and healthy workplace. Most we agree, if your workplace (conditions and employees) is compliant, it will likely result in a safe workplace, safe working conditions, more so than the if the workplace has compliance issues.

Being “compliant” is also business smart.  Considering nearly every “Program Inspection” result in a multitude of citations of what most safety people deem as “low hanging findings” that could easily be avoided [portable fire extinguisher lacking a month inspection, fire extinguishers (access) blocked, first aid supplies expired, the mandatory posting missing or “incomplete”, no or inadequate training records, no or inadequate inspections / recordkeeping, no or inadequate and signage postings and OSHA 300 Log violations] that are costly in fines.

Please keep my predictions handy and review them in January when the various safety journals, blogs and other sources publish the official annual stats.  Though the order may be a little off, the subject matter (items cited) will be spot on. 

“Are you in compliance or are you complacent?”

If you wish to be in compliant, call and schedule a comprehensive inspection of your facility / workplace.

For questions, information and comments, please feel free to email me at: paulandersenCHST@aol.com or call (888) OSHA-PRO

Information about OSHA Compliance Services LLC, our staff and services can be found at www.OSHACompliance.com

Visit us on Facebook @oshacomplianceservices

OSHA  requires employers to conduct a hazard assessment of the workplace/assigned task and to document these hazard evaluations as well as the corrective actions taken to reduce or control these “known or suspected hazards”. 

This process is a Job Hazard Analysis or commonly referred to as J.H.A. (or J.S.A) The J.H.A. is a formal process, usually accomplished with the support of the Project Engineer, Superintendent (field supervisor), Competent Person and often one or more of the employees who perform the task.

The process generally involves reviewing the scope of work, project drawings, As-Built’s” and often a pre-job site walk.  The pre-job site walk (if conducted) is a critical time for the project manager and superintendent to review the work-site and conduct a J.H.A. and develop a “Site Specific Safety Plan” (S.S.S.P.) and other basic tools such J.H.A. checklist and or a Safe Work Permit. A Job Packet with key documenting (Permit to Proceed, USA Ticket, Traffic Control Plan & other permits and procedures) is usually assembled and made ready to accompany the Site Foremen on the first day of the project.

§1511. General Safety Precautions.(a) No worker shall be required or knowingly permitted to work in an unsafe place, unless for the purpose of making it safe and then only after proper precautions have been taken to protect the employee while doing such work.(b) Prior to the presence of its employees, the employer shall make a thorough survey of the conditions of the site to determine, so far as practicable, the predictable hazards to employees and the kind and extent of safeguards necessary to prosecute the work in a safe manner in accordance with the relevant parts of Plate A-2-a and b of the Appendix.
Note: Many company safety policies state that a hazard assessment shall be conducted prior to conducting any activity that would or may have negative consequences should an incident occur. A policy statement such as this afford Cal/OSHA to issue a “Willful” enhancement to a citation, should one be issued if a hazard assessment was not conducted. Proper documentation is a critical component to help demonstrate that you adhered to the appropriate safety-compliance standards.       

Hazard Assessment
A Hazard Assessment is the process (required by law) of identifying the hazards associated with the defined task, prescribing control measure such as barriers/ guards, administrative methods such as policies and work-procedures, personal protective equipment (P.P.E.) and other relevant protection measures which must be adhered to in order to reduce the risk from the hazards.

What is the difference between a Hazard and a Risk?
Hazards: A hazard is generally defined as something that can cause you physical harm. Workplace hazards are generally conditions that would exposure an employee to harm (injury or death) such as a potential fall, struck-by, caught-between, electrical shock, chemical injuries, engulfment, loud noise (85 dba) and other physical exposures that could pose a realistic potential hazard for an exposed employee.
Risks: Risk is the chance, high or low, that an occurrence with negative consequences will occur. Considering the “risk”, an assessment is based on exposure and measured expectation (chance), high or low, that a hazard will/could likely cause harm to an exposed worker should an incident occur.
The terms “risk” and “hazard” are often misused, used interchangeably during a hazard assessment.  Generally speaking, risk factors would be: employee training and experience, specifications of the equipment (type-condition-use) and the specific task.
Climbing a ladder from the ground level to access a roof is a known or suspected hazard. An employee trained in ladder safety, using a Type III extension ladder, which was set at a 1 to 4 ratio, extended “3 feet” past the landing and is secured from falling, tipping of otherwise creating a hazard, the “risk” level is low.
An open trench on a job site would be considered a “hazard”. If the open trench was partitioned off with “cones and caution tape” the “risk” (chance) of an employee inadvertently falling into the trench is reduced. The hazard still exists but the risk could be considered “minimal” or at least reduced. Of course other factors such as experience, training, lighting/visibility surface conditions must also be considered, but I believe you get the idea. To eliminate (the ultimate goal) the hazard, a physical barrier would be needed to prevent employee exposure (contact) from the hazard. Keep in mind; “cones & caution tape” are not considered a valid physical barrier.  A physical barrier would be of type and construction to prevent access-exposure to the actual hazard. To eliminate the hazard of an open trench, the action plan would be to guard, such as with guardrails, fencing or a trench plate. Again, the construction of the materials is the factor to valid if the barrier is appropriate. An Inch and a 1/8 sheet of plywood (4ftX8ft) may serve to cover (protect) a trench 18 inches wide, 4 feet long. If the trench was 40 inches wide, 8 feet long, probably not.  A steel plate (“trench plate”) would be more appropriate. If the same (40”x 4Ft) trench was un-shored and “C” soil, it’s likely that neither the 1 1/8 plywood nor steel trench plate would be appropriate. Guarding or fencing, installed at a proper set-back would probably be a more appropriate form of protection. These are reasons why a hazard analyze must be conducted on-site, viewing the current-actual conditions. 

J.H.A. Documentation Documenting your hazard assessment can be as simple as a predetermined checklist of a more elaborate procedural based format including a detailed itemized explanation of the tasks, the known-suspect hazards and the potential harm that may occur and a detailed list of mitigation and abatement controls. Most of the time, a simple bullet point format, addressing the prominent tasks and hazards is used to document that a (basic) hazard assessment was conducted and that the employee who may be exposed to these potential hazards have been informed of these hazards and the safety precautions needed to ensure that the area will be a relative safe work area. A J.H.A. consists of three parts:·      A breakdown of a job into specific individual tasks.·      The identification of the hazards associated with each task.·      The methods of controlling/managing the identified hazards.
When developing your J.H.A. for a specific task, the detail can be as general or specific as the competent person has determined necessary to properly communicate the hazard and the control measures needed to complete the task safely and within compliance.
Terms and phases such as “use caution”, “be alert”, and “watch out” are general considered not effective verbiage. Abbreviations and slang should be avoid when describing a task of safety measure.  

Recording and Reporting Occupational Injuries and Illnesses

Though documenting occupational injuries and illness has been required for many years,
OSHA [Fed] new [2017] change in how the data was to be transmitted to the government has caused some concerns and quite a bit of traffic on safety blogs.
The new [2017] mandate is that employers must submit the Form 300A electronically. OSHA has created an on-line portal [ITA website] for employers to comply (upload the forms).
Continue reading →

The November/December 2018 California Constructor Online Magazine is now available.

This publication provides a wealth of information.  This month features the following.

Features: Cover Story: Focused on the Future The Critical Fight to Defeat Prop 6 AGC CEF – Stronger Than Ever AGC CEF Scholarships Reach Quarter Million in Four Years Where Are They Now? A Chat with Justin Besotes The CEF Workforce Pipeline – Getting Talent To and Through A Career In Construction AGC of California Training Programs Boost Skills, Build Up Leaders The Safety & Health / Construction Workforce Development Link: AGC Member Rosendin Electric Taps Technology to Train & Inform Workers, Improve Safety Industrywide Member Spotlight: Yerba Buena Engineering & Construction Shows Strength Through Diversity Help the environment by reducing the number of printed copies. Read the digital edition of California Constructor magazine anywhere, on any internet-enabled device. The digital edition contains the same articles, images and ads as the printed copy in a convenient digital format. Request your free online subscription here

According to OSHA, the leading causes of worker deaths on construction sites were falls, electrocution, struck-by-object and caught-in/between. These “Fatal Four” were responsible for more than 58% of the construction deaths in 2014. Continue reading →

As the dog-days of summer are upon us and the local temperatures will commonly be in the upper 80’s and 90’s throughout the rest of the year in most locations of the state (CA), if you haven’t already, please review your Heath Injury Aware Program and review the details with your Supervisors and employees.  Please keep in mind CalOSHA’s “Heat Standard” (CCR §3395) applies regardless of current temperatures or seasonal temperatures. Continue reading →

As the Fires continue to burn throughout much of California, many of you have asked for more information on the use and training/compliance requirements for providing and authorizing the use of “Respirators”.  For your review and consideration please see the attached documents: Continue reading →