Editor’s Note: You may review Part 1 of this series, “Why are Citations Under the Regulation So Common” in the October edition of the FELS Newsletter, and Part 2, “The Repercussions of an IIPP Citation,” in the November edition of the FELS Newsletter.

If you have an IIPP citation which is part of a larger citation package, it will affect your ability to defend the other citations in that package. For example, it is common to have an IIPP citation that accompanies a Serious and/or Serious Accident-Related citation. After all, if you had implemented your IIPP, there would be no hazard, and an injury or illness wouldn’t have occurred, right? Of course, reality is more nuanced than that, but this is how Cal/OSHA sees things. So, let’s consider how the IIPP citation might affect your defense of a Serious citation. 

The Division has the burden of proving a Serious citation. The Division must demonstrate that there is a realistic possibility of death or serious physical harm that could result from the hazard created by the violation. If the Division can prove this “realistic possibility”, there is a rebuttable presumption that a serious violation exists. (T8 CCR Section 334(c)(1).) The burden then shifts to the employer to rebut that presumption in order to establish that the violation was not serious. (T8 CCR Section 334(c)(3).) In order to accomplish this, the employer must demonstrate that it took reasonable steps to anticipate and prevent the violation/hazard. This requires proof of the following: documented training; procedures for discovering and correcting hazards; adequate supervision of employees; procedures for communicating with employees about safety rules and programs; and effective actions to eliminate the hazard once it was discovered. (T8 CCR Sections 334(c)(3)(A) and (B).)

Does this sound familiar? That’s because these are all requirements found at Section 3203 (the IIPP regulation). So, if you have an IIPP citation in conjunction with a Serious citation, you will find it more difficult to rebut the presumption of a serious violation. That is because you will have to prove compliance with the IIPP regulation before you can demonstrate there was no serious violation. This becomes even harder where the Serious citation is issued as Accident-Related, because now the Division is asserting that the hazard/violation actually created the injury or illness.

In these situations, it is easy to focus on the Serious or Accident-Related citation, because the penalty is greater and it will ultimately be reflected on your “OSHA record” (check your OSHA establishment history here: https://www.osha.gov/ords/imis/establishment.html). We agree that Serious citations should be defended vigorously. However, as mentioned in our earlier posts, don’t ignore the importance of defending that IIPP citation, even if it is a General citation with a penalty of $500.00. In the long run, it may be the more important focus.

So where do we go from here? Getting Cal/OSHA to acknowledge that sometimes an accident can happen, or a hazard can be present, despite an employer’s best efforts at implementing its IIPP, is an uphill battle. But we should still try to have the conversation and work with the Division on a better approach to enforcement of this regulation. This can happen through stakeholder participation in advisory committees, Standards Board meetings, rulemaking and other interactive processes. There should also be a conversation with leaders at Cal/OSHA who are willing to consider a different and more collaborative approach to enforcement. After all, the majority of employers are truly trying to make their workplaces safer. So, Cal/OSHA, are you ready to consider a different kind of enforcement?

In the meantime, here is our parting message to employers: don’t be fooled by the low penalty that may be associated with an IIPP citation. Be ready to defend your program!

The Prince Firm, located in Santa Rosa, focuses on all aspects of the California Occupational Safety and Health Admin­istration (Cal/OSHA) including advocacy during rulemaking, compliance assis­tance, crisis management, ongoing management of enforcement activity, and appeal and defense of citations. You can reach the Prince Firm at 707-978-7900 or info@lisaprincelaw.com