In the News

The Conn Maciel Carey lawyers -- Fred Walter and Andrew Sommer -- write in their post that the new “egregious” test could allow Cal/OSHA to penalize employers several times for a single underlying incident -- which they call “more dangerous” than SB 606’s other provisions.
 

“What this means is that a single violation -- for example, the existence of combustible dust -- can result in multiplied penalties based on each affected employee,” they write.
 

While Cal/OSHA has recognized “violation-by-violation” penalties under its Policy and Procedures Manual, specifically contemplated for recordkeeping violations, the agency has “rarely cited violation-by-violation penalties,” the lawyers say. “So, while there seems to be some precedent for this approach, this law goes well beyond current practice.”

“Big picture, the draft permanent rule is largely a significant improvement over the ETS but there are some areas of concern that we hope are addressed through the Advisory Committee process,” Andrew Sommer, a San Francisco-based attorney with the employer-focused firm Conn Maciel Carey, wrote in a Sept. 20 blog post.

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Cal/OSHA staff noted that exclusion pay is still expected to be effective in the ETS and a readopted ETS until that time, indicating that if the issue is that important, lawmakers would have time to approve an emergency law.

Sommer called the deletion of the exclusion pay provision a “major improvement given its significant economic toll and that, problematically . . . allows for private lawsuits to recover any unpaid benefits.”

The Cal/OSHA regulations apply in almost every workplace in the state, including workers in offices, factories and retail. Its pandemic rules apply to all employees except those working from home or where there is a single employee who does not have contact with other people.

“Cal/OSHA is out of step with the rest of the country,” Andrew Sommer said on behalf of the California Employers COVID-19 Prevention Coalition before the vote.

“The good news is, the agency took our feedback at the Advisory Committee and in our written comments seriously. Much of what we advocated for, practically verbatim, has been included in the proposed amended ETS,” writes Andrew J. Sommer, a San Francisco-based partner with the firm Conn Maciel Carey, in a May 11 post.

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In February, Cal/OSHA convened an advisory committee on ETS consisting of members from business and industry, labor and community groups, public agencies, and the health sciences to provide input on possible changes to the ETS, Sommer explains. Stakeholder groups then submitted extensive comments recommending a variety of changes.

According to Sommer’s perspective, some of the key changes being proposed include the definition of “close contact” for purposes of determining exposure and consequential obligations on employers.

 

“The updated ETS substitutes the term ‘Close Contact’ for the current term ‘COVID-19 Exposure,’ which Cal/OSHA had used to define a close contact instead of just using the more widely understood term close contact,” he explains. “More importantly, the updated ETS will exclude from the definition of Close Contact an individual wearing an N95 or other respirator, but only if the respirator was required by the employer and worn in compliance with the respiratory protection standard; i.e., with fit testing, medical evaluations, written respiratory protection program, etc.”

While the petition has support from a host of major groups, including the U.S. Chamber of CommerceNational Association of Manufacturers (NAM) and the National Federation of Independent Businesses (NFIB), one industry attorney doubts the high court will accept the case or reverse the state court ruling given the OSH Act language encouraging states to implement their own state authorities.

 

“I think it would require some legal gymnastics to find preemption given how the federal OSH Act is structured,” says Andrew Sommer, an attorney at the firm Conn Maciel Carey, which represents employers.

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“What's interesting from a practical standpoint there so many routes that are now recognized from a regulatory perspective in lawsuits pursuing the employer for an employee fatality in the workplace in addition to the citations issued by Cal/OSHA a result of an inspection,” says Sommer, the Conn Maciel Carey attorney.

And while Sommer does not expect the Supreme Court to overturn the California Supreme Court decision given the language in the OSH Act providing states with such authority to issue their own regulations, he says that 9th Circuit precedent “is a compelling argument.”

Andrew J. Sommer, a San Francisco-based partner in the Cal/OSHA and employment practice with Conn Maciel Carey, pointed to another shift in the rules in California affecting enforcement practices: employers cited for violations who have other sites statewide with similar violations.

“If you have multiple facilities… any time you evaluate a (Cal/OSHA citation), you have to look at other facilities,” said Mr. Sommer, adding that all facilities must be aware of any Cal/OSHA activity at sister facilities and should work to correct similar issues identified as problematic.

The federal Occupational Safety and Health Administration developed guidance to help define workplace violence, said Andrew Sommer, partner at the firm. It relates to any act or threat of physical violence, harassment, intimidation or other threatening and disruptive behavior that occurs in the workplace. This includes assault, battery, harassment, intimidation, bullying, threats and active shooter situations.

“Workplace violence can manifest in a variety of ways,” he said.

Violence can come from current employees, disgruntled former employees and failed job applicants, he said. Other times there is a third party, such as a spouse going through a divorce with an employee, an employee’s stalker or a client, patron or vendor, who commits an act of violence in the workplace. Strangers with no connection at all can also commit acts of violence, he said, such as a robbery or gang incident in a public place.

Employers should identify conditions, work tasks and situations that expose workers to the greatest risk of violent incidents, Sommer said.

About 18% of violent crimes are committed in the workplace and about 10% of the 4,836 workplace fatalities that occurred in the workplace in 2015 were homicides, according to data from the Bureau of Labor Statistics.

“That’s a real alarming number and this explains why fed (U.S. Occupational Safety and Health Administration) and state enforcement agencies have become more involved on workplace violence issues,” Andrew Sommer, a San Francisco-based partner with Conn Maciel Carey P.L.L.C., said during a firm webinar on Tuesday.

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Employers can also expect states with prevention program requirements to use those as a basis for potential citations for failing to adequately address workplace violence risks, Mr. Sommer said. In April, a standard to specifically address workplace violence in the health care sector took effect in California and requires that health care employers create a violence prevention plan, keep a comprehensive record of violent incidents and provide workplace violence training.