California Changes Cal/OSHA Abatement Law

Author: Ashley Shaw, XpertHR Legal Editor

October 14, 2014

California Governor Jerry Brown signed into law an amendment that changes the way the California Division of Health and Safety (DOSH, better known as Cal/OSHA) may grant modifications to civil penalties for abatements or to give credit for abatements for violations. The law will go into effect on January 1, 2015.

Once the amendment is effective, Cal/OSHA will only be able to grant proposed modifications for serious violations if the employer has:

  • Completed the abatement at the initial Cal/OSHA inspection;
  • Completed the abatement at a follow-up inspection before an actual citation has been given; or
  • Submitted a signed affidavit that also includes supporting evidence showing the violation has been corrected with the measures listed in the citation. This must be submitted within 10 working days after the end of the abatement period.

Under the new requirements, an employer will need to fix serious violations within the given timeframe even when it is seeking reconsideration of the citation. The fact that an appeal is being conducted does not excuse an employer from completing the abatement and from providing proof of the abatement in the case of a serious, repeat or willful violation unless the employer receives a stay or suspension of the requirement.

To receive a stay or suspension, an employer must file a verified, written petition that includes supporting declarations within 10 days of the order or decision. An employer must prove, by the greater weight of the evidence, that a stay or suspension will not hurt the health or safety of the workers. The new law provides that proof of abatement will not be considered to be an admission that a violation occurred in cases being appealed.

An employer that does not complete one of the three requirements for proof of abatement may face civil penalties beginning on the date for abatement listed on the citation. After 45 days, an employer with a serious citation that has not given the required proof of abatement will be re-inspected.