Keenan Briefings

Briefings

AB 1804 and 1805: Cal/OSHA Reporting Requirements for Occupational Illness, Injury or Death

November 13, 2019

On August 30, 2019, Governor Newsom signed into law two bills which will have an impact on employers’ reporting of occupational illnesses, injuries, or deaths to the California Division of Occupational Safety and Health (Cal/OSHA).

AB 1804 (Chapter 199, Statutes of 2019)

Prior to 2015, Labor Code § 6409.1(b) required employers to file a report of serious injury or death by “telephone or telegraph.” In 2014, AB 326 (Chapter 91, Statutes of 2014) modernized the language of § 6409.1(b) to allow employers to report by telephone or email. According to the author of AB 1804, receiving emailed reports of serious injuries and deaths has proved problematic for Cal/OSHA. When an employer reports via email, it can omit meaningful information about the workplace accident, leaving Cal/OSHA unable to promptly initiate an investigation or take other action.

AB 1804 will remove an employer’s ability to report by email to Cal/OSHA when a serious occupational injury, illness or death occurs. Instead, the bill requires that the report be made through an online mechanism established by Cal/OSHA for that purpose.

The bill further specifies that until Cal/OSHA makes such an online mechanism available, employers are still permitted to make the report by email. Therefore, employers do not have to make any changes to their current reporting method until Cal/OSHA makes its online system available.

AB 1805 (Chapter 200, Statutes of 2019)

AB 1805 revises two definitions in the Labor Code to comply with federal law. It revises the definition of “serious injury or illness” for purposes of Cal/OSHA reporting, by:

  • removing the 24-hour minimum time requirement for qualifying hospitalizations
  • excluding those hospitalizations for medical observation or diagnostic testing
  • explicitly including the loss of an eye as a qualifying injury
  • deleting loss of a body member from the definition of serious injury and, instead, including amputation
  • eliminating the current law exclusion of injury or illness caused by certain violations of the Penal Code
  • narrowing the exclusion of injuries caused by accidents occurring on a public street or highway to include those injuries or illnesses occurring in a construction zone

Serious injury or illness is now defined as follows:

Labor Code § 6302(h) “Serious injury or illness” means any injury or illness occurring in a place of employment or in connection with any employment that requires inpatient hospitalization, for other than medical observation or diagnostic testing, or in which an employee suffers an amputation, the loss of an eye, or any serious degree of permanent disfigurement, but does not include any injury or illness or death caused by an accident on a public street or highway, unless the accident occurred in a construction zone.

The new law also recasts the definition of “serious exposure” 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. “Serious exposure” will therefore be defined as follows:

Labor Code § 6302(i) “Serious exposure” means 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 that death or serious physical harm in the future could result from the actual hazard created by the exposure.

Existing law also establishes the standard for what constitutes a “serious violation” requiring a faster response from Cal/OSHA and requiring Cal/OSHA to keep confidential the name of a person submitting a complaint regarding unsafe or unhealthy working conditions. Prior to the passage of AB 1805, Labor Code § 6309 provided that a “serious violation” exists when Cal/OSHA determines that there is a substantial possibility that death or serious injury could result from the condition alleged in the complaint. AB 1805 instead establishes that a serious violation exists when Cal/OSHA determines that there is a realistic possibility that death or serious injury could result from the actual hazard created by the condition alleged in the complaint. This change in language was put in place for the purpose of consistently defining a serious violation the same way throughout the Labor Code.

Important Reminder: Employers continue to be required to report “serious injuries and illnesses” immediately but no later than eight (8) hours after the employer knows, or with diligent inquiry would have known of the death or serious injury or illness. Failure to do so can result in significant financial fines and penalties.

The provisions of AB 1805 go into effect on January 1, 2020.

Reporting Serious Injury and Illness to Cal/OSHA

Click the following link to find your local Cal/OSHA office to make a report of a serious injury and illness.

https://www.dir.ca.gov/asp/DoshzipSearch.html

When making a report, the reporting party shall include the following information, if available:

  • Time and date of accident
  • Employer’s name, address and telephone number
  • Name and job title, or badge number of the person reporting the accident
  • Address of the site of the accident or event
  • Name of the person to contact at the site of the accident
  • Name and address of the injured employee(s)
  • Nature of the injury
  • Location where the injured employee(s) was (were) moved to
  • List and identity of other law enforcement agencies present at the site of the accident
  • Description of the accident and whether the accident scene or instrumentality has been altered

Use this link to print out §342. Reporting Work-Connected Fatalities and Serious Injuries requirements:

http://www.dir.ca.gov/title8/342.html

Key Points

  • The employer’s requirement to report a serious injury or fatality is independent of any other agency (police/fire dept., etc.) that might also be required to make a report to Cal/OSHA
  • Ensure that all employees are aware of the Cal/OSHA reporting requirements and provide a contact should the need arise.
  • Ensure that supervisory personnel accompanying an injured worker to the hospital inquire as to the status of the employee (i.e. being admitted, observation, or being released).

For any questions about this Briefing or the Cal/OSHA reporting requirements, feel free to contact your Keenan representative.


Keenan & Associates is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.