Does Cal/OSHA conduct enough health inspections? When the agency inspects, does it issue citations in a timely manner? And does it keep up with follow-up inspections for serious violations? How about its complaint response times?

The employee watchdog group Public Employees for Environmental Responsibilities (PEER) has taken issue with Cal/OSHA’s performance in all of these areas—and has drawn responses from both federal OSHA (Fed/OSHA) and Cal/OSHA of interest to employers.

In February 2015, PEER submitted a formal Complaint About State Program Administration (CASPA) to Fed/OSHA, which responded to PEER’s allegations in June. At the end of July, Cal/OSHA also responded to all of the allegations, as well as to Fed/OSHA’s assessment. Cal/OSHA’s response details the ways the agency intends to increase and improve its enforcement activity.

Federal OSHA’s assessment

Fed/OSHA concluded that Cal/OSHA conducts a higher percentage of health inspections than the federal agency does but found merit in the other issues PEER raised. It recommended that Cal/OSHA:

• Increase the number of inspections in high-hazard workplaces;
• Conduct more follow-up inspections;
• Improve citation lapse times; and
• Improve complaint response times.

In particular, Fed/OSHA determined that the lapse time for issuing citations and the failure to initiate complaint inspections in a timely manner were chronic problems for Cal/OSHA. These issues were initially identified in Cal/OSHA’s Federal Annual Monitoring and Evaluation (FAME) report, issued in 2011.

Cal/OSHA’s response

On July 30, Cal/OSHA responded to the federal agency’s assessment. Cal/OSHA Chief Juliann Sum faulted Fed/OSHA for basing its “findings regarding Cal/OSHA’s ‘chronic deficiencies’ almost entirely on outdated information from the federal fiscal year that ended in September 2013, reflecting conditions under previous Cal/OSHA leadership.”

Sum pointed out that since 2013, Cal/OSHA has had statutory spending limits lifted and used the increase in funding to make “substantial improvements in staffing resources, training, procedures, and inspection outcomes.”

Sum also:

• Defended Cal/OSHA’s inspection priorities. She explained that because Cal/OSHA emphasizes accident-based inspections and complaint investigations over programmed inspections, it identifies a higher percentage of serious, willful, and repeat inspections than Fed/OSHA’s programmed inspections. Sum also noted that while Cal/OSHA’s programmed inspections are differently structured than federal OSHA’s--emphasizing joint Labor Enforcement Task Force targets and focusing on workplaces like tunnels and oil refineries—they “play a critical role in protecting workers and preventing disasters.”
  

  Going forward, Cal/OSHA is adding staff in 2015 to increase the number of high-hazard targeted inspections, inspections of worksites where Cal/OSHA issued permits to conduct high-risk construction operations, and other types of programmed inspections.

• Defended Cal/OSHA’s record on follow-up inspections. Sum noted that when an employer appeals a citation, the abatement requirement is temporarily suspended--something that is also true at the federal level—and that at least some of the follow-up inspections that were not conducted in a “timely manner” pertained to citations under appeal. Cal/OSHA also felt Fed/OSHA failed to consider the lag time between a follow-up inspection being conducted or an abatement certification received and that same inspection or certification showing up in Fed/OSHA’s tracking system (called IMIS).
  

  Going forward, Cal/OSHA plans to use increased funding to add staff who will perform more follow-up inspections, which will be conducted even when the employer has submitted evidence of abatement.

• Defended Cal/OSHA’s “lapse times.” Federal OSHA agreed with PEER that Cal/OSHA doesn’t issue citations in a timely manner, leading to delays in abatement actions and prolonged employee exposure to hazards. Sum, however, pointed out that 40 percent of serious violations in California are corrected during the inspection, not after a citation is issued, and that Cal/OSHA issues most citations within 6 months, as required by statute.
  

  Going forward, Cal/OSHA says it doesn’t expect its lapse times to change much because it conducts many more complaint-based and accident-based inspections and proportionately more health inspections than Fed/OSHA. It also allows time for employers to rebut possible serious citations. Instead, Cal/OSHA intends to open discussions with federal OSHA to determine mutually agreed upon appropriate lapse times.

• Asserted that Cal/OSHA’s complaint response times have improved. PEER accused Cal/OSHA of not responding to worker complaints of unsafe or unhealthy working conditions in a timely manner. Sum acknowledged that Cal/OSHA’s average response times in 2013 didn’t meet its statutory mandates of 3 working days to respond to formal serious complaints and 14 days for formal nonserious complaints. However, Sum noted, in 86 percent of serious complaints and 70 percent of nonserious complaints, Cal/OSHA responded in a timely manner, and those numbers improved in 2014.
  

  Going forward, Cal/OSHA will continue to add staff, which will help to reduce the agency’s response times.

Proceed with caution

It seems that, after a long period of recession-induced spending cuts, Cal/OSHA enforcement is settling back into a growth pattern, encouraged by increased funding and more active federal oversight. Employers that have been coasting with respect to Cal/OSHA compliance should enhance their vigilance.