New California Bill Amends Labor Code to Redefine “serious injury or illness” in regards to the Standard for Investigation of an Employee for Possible OSHA violation.
On January 1, 2020, Labor Code section 6302 will reflect changes to the definition of “serious injury or illness” by removing the 24-hour minimum time requirement for qualifying hospitalizations, excluding those for medical observation or diagnostic testing. The bill also deletes “loss of any member of the body” but now lists “an amputation, the loss of an eye, or any serious degree of permanent disfigurement”. The bill also eliminates the exclusion of injury or illness caused by certain violations of the Penal Code and instead narrows the exclusion to include those injuries or illnesses caused by accidents occurring on a public street or highway but to include those injuries or illnesses occurring in a construction zone.
The definition of “Serious exposure” will be amended to read, “any exposure of an employee to a hazardous substance when the exposure occurs as a result of an incident, accident, emergency, or exposure over time and is in a degree or amount sufficient to create a realistic possibility of death or serious physical harm in the future could result from the actual hazard created by the exposure.” The italicized language was added from the past definition with “realistic possibility” replacing the former “substantial probability”.
Labor Code section 6309 will in turn reflect a new definition. This statute provides the standard for allowing an investigation of an employer when it believes the place of employment is not safe or is injurious to the welfare of an employee. A complaint will now be considered a “serious violation” if the “division determines that the complaint charges that there is a realistic possibility [changed from substantial probability] that death or serious physical harm could result from the actual hazard created by [new language added] a condition that exists, or from one or more practices, means, methods, operations, or processes that have been adopted or are in use in a place of employment.”
For brief background, Federal OSHA (Occupational Safety and Health Administration) was created in 1970 to assure safe and healthful working conditions in our country by setting and enforcing appropriate standards. US Code, title 29, §667, requires that individual State standards must be “at least as effective” as the Federal standards provisions.
According to the Committee on Labor and Employment, “In 2015, federal OSHA amended the reporting regulation to change the type of work-related injuries that employers must report. Covered employers must now report all work-related fatalities; hospitalizations or one or more employees; and any amputation or loss of an eye. Any state with its own OSHA plan, such as California, must make the necessary changes to conform to the federal OSHA regulation.”
Because California must have a program at least as effective as the federal OSHA standard, it became necessary to amend the sections noted above so that they encompass the same breadth of injuries and illnesses as the federal rule. Now, the inconsistencies on defining the noted phrases and standards within California law is changed to conform to the existing federal standards.
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