Quick Hits

• The California OSHAB ruled that an employer can imply consent to a Cal/OSHA inspection through the actions of a third party, even if that individual lacks actual authority to grant such consent.
• The board held that Cal/OSHA may establish a prima facie case that an employer did not maintain required records by showing that the employer failed to comply with requests for such records, which shifts the burden of proof to an employer to show that the records do exist.
• The board clarified that a single violation of an IIPP can be the basis for a “serious” violation of employers’ duty to identify and correct workplace hazards
• The board further clarified that a first aid-trained individual need not be physically present at the jobsite, but available to respond to an incident within minutes.

OSHAB, in Arana Residential and Commercial Painting, Inc., found that the employer, a painting service company, had impliedly consented to a California Division of Occupational Safety and Health (Cal/OSHA) inspection following a workplace safety incident when an individual who presented herself as acting on behalf of the company agreed to produce requested documents and scheduled witness interviews.

OSHAB then upheld two citations. The citations alleged (1) the employer failed to “keep required records of scheduled and periodic safety inspections and employee safety training” and (2) a serious violation of the Injury and Illness Prevention Program (IIPP) regulations for failing “to identify, evaluate, and correct unsafe work practices.”

However, the board vacated another allegation that the “[e]mployer failed to ensure the availability of a suitable number of persons trained in first aid at the job site,” finding that Cal/OSHA had not met its burden of proof.

Background

The case involved a workplace safety incident in which an employee slipped and fell while climbing scaffolding, resulting in an injury. The fire department that responded to the incident and the employer reported the incident to Cal/OSHA, though reporting was not technically required because it did not result in a “serious injury.”

An inspector with Cal/OSHA later contacted the employer, Arana, and reached an individual who identified herself as the employer’s workers’ compensation insurance broker and safety consultant. This person was not an employee of Arana, and, at times, told the inspector that an investigation was unnecessary since the injury to the worker was not “serious” or “reportable,” but agreed to produce documents.

However, according to the decision, the inspector was never told that the broker / consultant lacked the authority to consent to the inspection. Further, in the back-and-forth communication, the broker / consultant had sent the inspector several emails indicating the “[e]mployer’s intention of submitting requested documents and scheduling employee interviews.” Arana’s owner was copied on those emails. Still, the employer did not submit the requested documents, though it later produced some at a hearing.

Consent to an Inspection

The California Occupational Safety and Health (Cal/OSH) Act gives the Cal/OSHA broad authority to inspect places of employment to protect workplace safety and health. If an employer refuses to consent to an inspection, Cal/OSHA may seek an investigative subpoena or a warrant under the Cal/OSH Act. According to the decision, whether consent was given is a fact-specific inquiry.

Arana argued that the third-party broker / consultant did not have the authority to consent to the inspection and never fully consented to the inspection. However, OSHAB found that the third party’s communications and the employer’s actions indicated consent to the inspection. Specifically, OSHAB said the third party’s statements and conduct supported a finding that the broker / consultant did have authority to consent, and even assuming the third party did not, the inspector’s “belief” that the person had the authority “was reasonable and based upon good faith.”

OSHAB also rejected Arana’s arguments that consent had been withdrawn based on objections to the validity of the inspection, in particular assertions that the injury that led to the inspection was “not reportable” and, therefore, Cal/OSHA had no jurisdiction. Arana also argued that demands the inspection be closed with a finding of no citations and its failure to produce documents should have been interpreted as a refusal of consent.

However, OSHAB stated that “[a] workplace injury or accident need not be ‘reportable’ under [Cal/OSH] for the Division to exercise its jurisdiction in investigating the injury or accident.” Nonetheless, OSHAB found that the record did not indicate that Arana had consistently refused consent and had instead indicated that documents might be forthcoming.

“Employer’s disagreement over whether any violation existed, and its desire for the inspection to be closed, are not tantamount to refusing consent, particularly in light of Employer’s statements and conduct indicating its intention to cooperate with the investigation,” OSHAB stated in the decision.

Failure to Maintain Required Records

Additionally, Arana had argued that the citation for failure to maintain records was an improper penalty for failing to respond to the inspector’s document requests. OSHAB ruled that when an employer fails to provide requested records, “it is both reasonable and within” Cal/OSHA’s authority to “conclude that the records do not exist and issue a citation.”

OSHAB further rejected Arana’s argument that such a decision improperly shifts the burden of proof to the employer. The board held that Cal/OSHA may establish a prima facie case by showing that it requested legally required documents but did not receive them. After such a showing, the burden does shift to an employer. In this case, OSHAB said Arana had “failed to present any evidence to challenge” that the records do not exist.

Availability of First Aid–Trained Individual

However, OSHAB sided with Arana, finding Cal/OSHA had failed to meet its burden to prove that a suitable number of employees trained in first aid were not “available” to respond to the workplace safety incident. Even though a person with proper training was not physically present at the jobsite when the incident occurred, the employer had argued that a properly trained person was available to respond and, in fact, did return to the site within minutes of the incident. The Board said its prior precedents indicate that a trained person need not be physically present at all times but available within minutes.

Failure to Correct Workplace Hazards

According to the decision, the employer submitted a video re-enactment of the incident to Cal/OSHA as evidence. In the video, a supervisor and another employee recreated the circumstances leading up to the falling incident, in which the employee climbed up scaffolding instead of using a ladder. Based on that video, Cal/OSHA issued the citation for failure to correct hazards.

OSHAB corrected prior cases issued as decisions After reconsideration, which have been cited as holding that a single IIPP violation cannot be the basis for a citation. OSHAB said this is incorrect, and to the contrary, the board “has held that a single deficiency regarding an essential element of an IIPP or its implementation may support a violation.”

The board then asserted that the video, in which a supervisor “direct[ed] an employee to engage in an activity that had already caused an accident” was sufficient for Cal/OSHA to conclude that there was a “deficiency regarding an essential element” of the employer’s IIPP and thus a violation.

“In addition, the videotape is proof the violation occured [sic], regardless of why it was made,” OSHAB said. “An employer’s desire for evidence in response to a safety inspection does not entitle an employer to generate that evidence by exposing an employee to a safety hazard.”

Next Steps

The Arana decision underscores the importance of clearly and consistently communicating consent or a refusal of consent to a Cal/OSHA inspection. The board interpreted mere statements to a Cal/OSHA inspector that requested documents would be provided as sufficient to show the employer had consented to the investigation, and thereby gave Cal/OSHA jurisdiction to issue citations for any alleged violations discovered. The use of the third-party broker / safety consultant was fraught with miscommunications and a lack of understanding of the consent to the inspection.

The Arana decision further serves as a crucial reminder for employers about California’s requirements to maintain proper safety documentation, ensure the availability of trained first aid personnel, and promptly address unsafe work practices. Employers may want to consider proactive steps to review their safety programs, ensure all records are current and accessible, and train their staff on proper safety protocols.