Lost in the welter of other high-profile employment laws recently enacted by the California State Legislature is a new requirement that changes the criteria for deciding what are serious jobsite occupational injuries, illnesses and deaths of workers that employers need to report to the California Division of Occupational Safety and Health (Cal/OSHA).
Another new state law changes the methods by which employers are expected to file reports of these incidents. It eliminates the option for e-mail reporting once the agency opens a new online reporting website that it is currently working on. Even after the new website is up and operating, employers will still have the option of continuing to report via telephone. Both new laws will go into effect on Jan. 1, 2020.
One law, called AB 1805, amends the definition of “serious injury or illness” that is contained in state law by removing the 24-hour minimum time requirement for qualifying hospitalizations in cases where an employee suffers loss of a body part or suffers a serious degree of permanent disfigurement. The new law’s definition of these kinds of hospitalizations excludes stays for medical observation or diagnostic testing.
By deleting the time frame and simply mandating that reporting must occur when a worker’s injury requires hospitalization, legislators argue that the change will provide employers with added clarity when it comes to determining their reporting responsibilities.
Further, the law also replaces “loss of any member of the body” with “amputation,” and explicitly includes the loss of an eye as a qualifying injury. It eliminates the exclusion of an injury or illness caused by certain violations of the Penal Code, and narrows the inclusion of accidents on a public street or highway found to have occurred only in a construction zone.
In addition, AB 1805 revises the definition of “serious exposure” to dangerous chemicals. Under the amended law, a “serious exposure” encompasses the exposure of an employee to a hazardous substance in a degree or amount sufficient to create a “realistic possibility”—instead of the current “substantial probability”—that death or serious bodily harm could result from the “actual hazard created by” the exposure.
This change is consistent with establishing when a “serious violation” exists. When such a finding is made, it requires a faster response from Cal/OSHA, according to attorneys Matthew Deffebach, Mini Kapoor and Christina Gad of the law firm of Haynes and Boone LLP.
The other new law, AB 1804, changes the reporting requirement by directing employers to immediately report such incidents via telephone or through an online reporting mechanism that Cal/OSHA is in the process of creating, but which is not yet operational. Until the online reporting mechanism is available, employers will still be allowed to continue reporting serious accidents by both e-mail and telephone.
Employers should keep in mind that violations for failing to timely report a serious injury can result in a minimum fine of $5,000.
Legislators explained that the change in the law was prompted by complaints alleging that accident and injury reporting through e-mails has slowed accident investigations because Cal/OSHA may be getting incomplete information when it relies on this reporting method. They noted that during a telephone conversation, Cal/OSHA can ask for follow-up information—something that is not immediately available when using e-mail communications.
Also, by creating an online report portal, the legislators said that Cal/OSHA can prompt employers about the type of information that must be provided.
“Employers should re-evaluate their reporting procedures in light of these new obligations and monitor the Cal/OSHA website for announcements on when the new online reporting will be available,” Deffebach, Kapoor and Gad recommend.
