The 12 Days of California Labor & Employment Series – Day 7: Cal/OSHA Reporting Requirements

It's the end of the year and while everyone is busy, employers in California should be aware of new laws and regulations that go into effect on January 1, 2020. In the spirit of the season, we are using the "12 days of the holidays" to blog daily about one of these new California laws and its impact on California employers. On the seventh day of the holidays, my labor and employment attorney gave to me: seven swans a swimming and AB 1804 and 1805.

Currently, employers are required to report every occupational injury or occupational illness—as defined, for each employee that (1) results in lost time beyond the date of the injury or illness, and (2) requires medical treatment beyond first aid—to the Department of Industrial Relations (DIR) on a form prescribed by the department. Employers must also immediately report a serious occupational injury, illness, or death to the Division of Occupational Safety and Health by telephone or email, as specified. As of January 1, 2020 there are some changes as it relates to the California Division of Occupational Safety and Health (Cal/OSHA, the "Division").

AB 1804 now requires that for every case involving a serious injury, illness, or death—in addition to the DIR report already required—another report shall be made immediately by the employer to Cal/OSHA by telephone or through a specified online mechanism established by the Division. Until this mechanism is available, the employer shall be permitted to make the report by telephone or email. An employer who violates this may be assessed civil penalty of no less than $5000.

In addition, AB 1805 alters 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, and explicitly including the loss of an eye as a qualified injury. Further, the loss of a body member has been deleted from the definition of serious injury, but it now includes amputation. The definition of "serious exposure" has also been amended to include exposure of an employee to a hazardous substance in a degree or amount sufficient to create a realistic possibility that death or serious physical harm in the future could result from the actual hazard created by the exposure.

Finally, AB 1805 establishes that a serious violation exists when the Division determines there is a realistic possibility that death or serious injury could result from the actual hazard created by the condition alleged in the complaint. The definition amendments and AB 1805 now parallel with Federal OSHA standards.

Employers should ensure they create and implement injury reporting practices that necessitate immediate reporting of any serious occupational injury, illness, or death. In addition, employers need to know that they must report all in-patient hospitalizations and that they no longer have a 24 hour window before they need to report. Finally, employers need to know and be aware of the new definitions of "serious injury or illness" to ensure they are properly reporting incidents that may occur on the job.