6300. The California Occupational Safety and Health Act of 1973 is
hereby enacted for the purpose of assuring safe and healthful working
conditions for all California working men and women by authorizing
the enforcement of effective standards, assisting and encouraging
employers to maintain safe and healthful working conditions, and by
providing for research, information, education, training, and
enforcement in the field of occupational safety and health.
6301. The definitions set forth in this chapter shall govern the
construction and interpretation of this part.
6302. As used in this division:
(a) "Director" means the Director of Industrial Relations.
(b) "Department" means the Department of Industrial Relations.
(c) "Insurer" includes the State Compensation Insurance Fund and
any private company, corporation, mutual association, and reciprocal
or interinsurance exchange, authorized under the laws of this state
to insure employers against liability for compensation under this
part and under Division 4 (commencing with Section 3201), and any
employer to whom a certificate of consent to self-insure has been
issued.
(d) "Division" means the Division of Occupational Safety and
Health.
(e) "Standards board" means the Occupational Safety and Health
Standards Board, within the department.
(f) "Appeals board" means the Occupational Safety and Health
Appeals Board, within the department.
(g) "Aquaculture" means a form of agriculture as defined in
Section 17 of the Fish and Game Code.
(h) "Serious injury or illness" means any injury or illness
occurring in a place of employment or in connection with any
employment which requires inpatient hospitalization for a period in
excess of 24 hours for other than medical observation or in which an
employee suffers a loss of any member of the body or suffers any
serious degree of permanent disfigurement, but does not include any
injury or illness or death caused by the commission of a Penal Code
violation, except the violation of Section 385 of the Penal Code, or
an accident on a public street or highway.
(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 substantial probability that
death or serious physical harm in the future could result from the
exposure.
6303. (a) "Place of employment" means any place, and the premises
appurtenant thereto, where employment is carried on, except a place
where the health and safety jurisdiction is vested by law in, and
actively exercised by, any state or federal agency other than the
division.
(b) "Employment" includes the carrying on of any trade,
enterprise, project, industry, business, occupation, or work,
including all excavation, demolition, and construction work, or any
process or operation in any way related thereto, in which any person
is engaged or permitted to work for hire, except household domestic
service.
(c) "Employment," for purposes of this division only, also
includes volunteer firefighting when covered by Division 4
(commencing with Section 3200) pursuant to Section 3361.
(d) Subdivision (c) shall become operative on January 1, 2004.
6303.5. Nothing in this division shall be construed to limit the
jurisdiction of the state over any employmment or place of employment
by reason of the exercise of occupational safety and health
jurisdiction by any federal agency if federal jurisdiction is being
exercised under a federal law which expressly authorizes concurrent
state jurisdiction over occupational safety or health issues.
6304. "Employer" shall have the same meaning as in Section 3300.
6304.1. (a) "Employee" means every person who is required or
directed by any employer to engage in any employment or to go to work
or be at any time in any place of employment.
(b) "Employee" also includes volunteer firefighters covered by
Division 4 (commencing with Section 3200) pursuant to Section 3361.
(c) Subdivision (b) shall become operative on January 1, 2004.
(d) This act does not affect claims that arose pursuant to
Division 5 of this code between January 1, 2002, and the effective
date of this act.
6304.2. Notwithstanding Section 6413, and except as provided in
Sections 6304. 3 and 6304.4, any state prisoner engaged in
correctional industry, as defined by the Department of Corrections,
shall be deemed to be an "employee," and the Department of
Corrections shall be deemed to be an "employer," with regard to such
prisoners for the purposes of this part.
6304.3. (a) A Correctional Industry Safety Committee shall be
established in accordance with Department of Corrections
administrative procedures at each facility maintaining a correctional
industry, as defined by the Department of Corrections. The Division
of Occupational Safety and Health shall promulgate, and the
Department of Corrections shall implement, regulations concerning the
duties and functions which shall govern the operation of each such
committee.
(b) All complaints alleging unsafe or unhealthy working conditions
in a correctional industry shall initially be directed to the
Correctional Industry Safety Committee of the facility prison. The
committee shall attempt to resolve all complaints.
If a complaint is not resolved by the committee within 15 calendar
days, the complaint shall be referred by the committee to the
division where it shall be reviewed. When the division receives a
complaint which, in its determination, constitutes a bona fide
allegation of a safety or health violation, the division shall
summarily investigate the same as soon as possible, but not later
than three working days after receipt of a complaint charging a
serious violation, as defined in Section 6309, and not later than 14
calendar days after receipt of a complaint charging a nonserious
violation.
(c) Except as provided in subdivision (b) and in Section 6313, the
inspection or investigation of a facility maintaining a correctional
industry, as defined by the Department of Corrections, shall be
discretionary with the division.
(d) Notwithstanding Section 6321, the division may give advance
notice of an inspection or investigation and may postpone the same if
such action is necessary for the maintenance of security at the
facility where the inspection or investigation is to be held, or for
insuring the safety and health of the division's representative who
will be conducting such inspection or investigation.
6304.4. A prisoner engaged in correctional industry, as defined by
the Department of Corrections, shall not be considered an employee
for purposes of the provisions relating to appeal proceedings set
forth in Chapter 7 (commencing with Section 6600).
6304.5. It is the intent of the Legislature that the provisions of
this division, and the occupational safety and health standards and
orders promulgated under this code, are applicable to proceedings
against employers for the exclusive purpose of maintaining and
enforcing employee safety.
Neither the issuance of, or failure to issue, a citation by the
division shall have any application to, nor be considered in, nor be
admissible into, evidence in any personal injury or wrongful death
action, except as between an employee and his or her own employer.
Sections 452 and 669 of the Evidence Code shall apply to this
division and to occupational safety and health standards adopted
under this division in the same manner as any other statute,
ordinance, or regulation. The testimony of employees of the division
shall not be admissible as expert opinion or with respect to the
application of occupational safety and health standards. It is the
intent of the Legislature that the amendments to this section enacted
in the 1999-2000 Regular Session shall not abrogate the holding in
Brock v. State of California (1978) 8l Cal.App.3d 752.
6305. (a) "Occupational safety and health standards and orders"
means standards and orders adopted by the standards board pursuant to
Chapter 6 (commencing with Section 140) of Division 1 and general
orders heretofore adopted by the Industrial Safety Board or the
Industrial Accident Commission.
(b) "Special order" means any order written by the chief or the
chief's authorized representative to correct an unsafe condition,
device, or place of employment which poses a threat to the health or
safety of an employee and which cannot be made safe under existing
standards or orders of the standards board. These orders shall have
the same effect as any other standard or order of the standards
board, but shall apply only to the employment or place of employment
described in the written order of the chief's authorized
representative.
6306. (a) "Safe," "safety," and "health" as applied to an
employment or a place of employment mean such freedom from danger to
the life, safety, or health of employees as the nature of the
employment reasonably permits.
(b) "Safety device" and "safeguard" shall be given a broad
interpretation so as to include any practicable method of mitigating
or preventing a specific danger, including the danger of exposure to
potentially injurious levels of ionizing radiation or potentially
injurious quantities of radioactive materials.
6307. The division has the power, jurisdiction, and supervision
over every employment and place of employment in this state, which is
necessary adequately to enforce and administer all laws and lawful
standards and orders, or special orders requiring such employment and
place of employment to be safe, and requiring the protection of the
life, safety, and health of every employee in such employment or
place of employment.
6307.1. The State Department of Health Services shall assist the
division in the enforcement of Section 25910 of the Health and Safety
Code in the manner prescribed by a written agreement between the
State Department of Health Services and the Department of Industrial
Relations, pursuant to Section 144.
6308. The division, in enforcing occupational safety and health
standards and orders and special orders may do any of the following:
(a) Declare and prescribe what safety devices, safeguards, or
other means or methods of protection are well adapted to render the
employees of every employment and place of employment safe as
required by law or lawful order.
(b) Enforce Section 25910 of the Health and Safety Code and
standards and orders adopted by the standards board pursuant to
Chapter 6 (commencing with Section 140) of Division 1 of the Labor
Code, for the installation, use, maintenance, and operation of
reasonable uniform safety devices, safeguards, and other means or
methods of protection, which are necessary to carry out all laws and
lawful standards or special orders relative to the protection of the
life and safety of employees in employments and places of employment.
(c) Require the performance of any other act which the protection
of the life and safety of the employees in employments and places of
employment reasonably demands.
An employer may request a hearing on a special order or action
ordered pursuant to this section, at which the employer, owner, or
any other person may appear. The appeals board shall conduct the
hearing at the earliest possible time.
All orders, rules, regulations, findings, and decisions of the
division made or entered under this part, except special orders and
action orders, may be reviewed by the Supreme Court and the courts of
appeal as may be provided by law.
6308.5. Hearings conducted by the division pursuant to this part
shall give any affected employer or other affected person the
opportunity to submit facts or arguments, but may be conducted
informally, either orally or in writing.
6309. If the division learns or has reason to believe that an
employment or place of employment is not safe or is injurious to the
welfare of an employee, it may, on its own motion, or upon complaint,
summarily investigate the same with or without notice or hearings.
However, if the division receives a complaint from an employee, an
employee's representative, including, but not limited to, an
attorney, health or safety professional, union representative, or
government agency representative, or an employer of an employee
directly involved in an unsafe place of employment, that his or her
employment or place of employment is not safe, it shall, with or
without notice or hearing, summarily investigate the complaint as
soon as possible, but not later than three working days after receipt
of a complaint charging a serious violation, and not later than 14
calendar days after receipt of a complaint charging a nonserious
violation. The division shall attempt to determine the period of time
in the future that the complainant believes the unsafe condition may
continue to exist, and shall allocate inspection resources so as to
respond first to those situations in which time is of the essence.
For purposes of this section, a complaint is deemed to allege a
serious violation if the division determines that the complaint
charges that there is a substantial probability that death or serious
physical harm could result from a condition which exists, or from
one or more practices, means, methods, operations, or processes which
have been adopted or are in use in a place of employment. When a
complaint charging a serious violation is received from a state or
local prosecutor, or a local law enforcement agency, the division
shall summarily investigate the employment or place of employment
within 24 hours of receipt of the complaint. All other complaints are
deemed to allege nonserious violations. The division may enter and
serve any necessary order relative thereto. The division is not
required to respond to a complaint within this period where, from the
facts stated in the complaint, it determines that the complaint is
intended to willfully harass an employer or is without any reasonable
basis.
The division shall keep complete and accurate records of all
complaints, whether verbal or written, and shall inform the
complainant, whenever his or her identity is known, of any action
taken by the division in regard to the subject matter of the
complaint, and the reasons for the action, within 14 calendar days of
taking any action. The records of the division shall include the
dates on which any action was taken on the complaint, or the reasons
for not taking any action on the complaint. The division shall,
pursuant to authorized regulations, conduct an informal review of any
refusal by a representative of the division to issue a citation with
respect to an alleged violation. The division shall furnish the
employee or the representative of employees requesting the review a
written statement of the reasons for the division's final disposition
of the case.
The name of a person who submits to the division a complaint
regarding the unsafe condition of an employment or place of
employment shall be kept confidential by the division, unless that
person requests otherwise.
The division shall annually compile and release on its Web site
data pertaining to complaints received and citations issued.
The requirements of this section do not relieve the division of
its requirement to inspect and assure that all places of employment
are safe and healthful for employees. The division shall maintain the
capability to receive and act upon complaints at all times.
6310. (a) No person shall discharge or in any manner discriminate
against any employee because the employee has done any of the
following:
(1) Made any oral or written complaint to the division, other
governmental agencies having statutory responsibility for or
assisting the division with reference to employee safety or health,
his or her employer, or his or her representative.
(2) Instituted or caused to be instituted any proceeding under or
relating to his or her rights or has testified or is about to testify
in the proceeding or because of the exercise by the employee on
behalf of himself, herself, or others of any rights afforded him or
her.
(3) Participated in an occupational health and safety committee
established pursuant to Section 6401.7.
(b) Any employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated against in
the terms and conditions of employment by his or her employer because
the employee has made a bona fide oral or written complaint to the
division, other governmental agencies having statutory responsibility
for or assisting the division with reference to employee safety or
health, his or her employer, or his or her representative, of unsafe
working conditions, or work practices, in his or her employment or
place of employment, or has participated in an employer-employee
occupational health and safety committee, shall be entitled to
reinstatement and reimbursement for lost wages and work benefits
caused by the acts of the employer. Any employer who willfully
refuses to rehire, promote, or otherwise restore an employee or
former employee who has been determined to be eligible for rehiring
or promotion by a grievance procedure, arbitration, or hearing
authorized by law, is guilty of a misdemeanor.
6311. No employee shall be laid off or discharged for refusing to
perform work in the performance of which this code, including Section
6400, any occupational safety or health standard or any safety order
of the division or standards board will be violated, where the
violation would create a real and apparent hazard to the employee or
his or her fellow employees. Any employee who is laid off or
discharged in violation of this section or is otherwise not paid
because he or she refused to perform work in the performance of which
this code, any occupational safety or health standard or any safety
order of the division or standards board will be violated and where
the violation would create a real and apparent hazard to the employee
or his or her fellow employees shall have a right of action for
wages for the time the employee is without work as a result of the
layoff or discharge.
6312. Any employee who believes that he or she has been discharged
or otherwise discriminated against by any person in violation of
Section 6310 or 6311 may file a complaint with the Labor Commissioner
pursuant to Section 98.7.
6313. (a) The division shall investigate the causes of any
employment accident that is fatal to one or more employees or that
results in a serious injury or illness, or a serious exposure, unless
it determines that an investigation is unnecessary. If the division
determines that an investigation of an accident is unnecessary, it
shall summarize the facts indicating that the accident need not be
investigated and the means by which the facts were determined. The
division shall establish guidelines for determining the circumstances
under which an investigation of these accidents and exposures is
unnecessary.
(b) The division may investigate the causes of any other
industrial accident or occupational illness which occurs within the
state in any employment or place of employment, or which directly or
indirectly arises from or is connected with the maintenance or
operation of the employment or place of employment, and shall issue
any orders necessary to eliminate the causes and to prevent
reoccurrence. The orders may not be admitted as evidence in any
action for damages, or any proceeding to recover compensation, based
on or arising out of injury or death caused by the accident or
illness.
6313.5. The division shall transmit to the Registrar of Contractors
copies of any reports made in any investigation conducted pursuant
to subdivision (a) of Section 6313, and may, upon its own motion or
at the request of the Registrar of Contractors, transmit copies of
any other reports made in any investigation conducted pursuant to
subdivision (b) of Section 6313 involving a contractor licensed
pursuant to the Contractors License Law (Chapter 9 (commencing with
Section 7000) of Divison 3 of the Business and Professions Code).
6314. (a) To make an investigation or inspection, the chief of the
division and all qualified divisional inspectors and investigators
authorized by him or her shall, upon presenting appropriate
credentials to the employer, have free access to any place of
employment to investigate and inspect during regular working hours,
and at other reasonable times when necessary for the protection of
safety and health, and within reasonable limits and in a reasonable
manner. The chief or his or her authorized representative may, during
the course of any investigation or inspection, obtain any
statistics, information, or any physical materials in the possession
of the employer that are directly related to the purpose of the
investigation or inspection, conduct any tests necessary to the
investigation or inspection, and take photographs. Photographs taken
by the division during the course of any investigation or inspection
shall be considered to be confidential information pursuant to the
provisions of Section 6322, and shall not be deemed to be public
records for purposes of the California Public Records Act.
(b) If permission to investigate or inspect the place of
employment is refused, or the facts or circumstances reasonably
justify the failure to seek permission, the chief or his or her
authorized representative may obtain an inspection warrant pursuant
to the provisions of Title 13 (commencing with Section 1822.50) of
the Code of Civil Procedure. Cause for the issuance of a warrant
shall be deemed to exist if there has been an industrial accident,
injury, or illness reported, if any complaint that violations of
occupational safety and health standards exist at the place of
employment has been received by the division, or if the place of
employment to be inspected has been chosen on the basis of specific
neutral criteria contained in a general administrative plan for the
enforcement of this division.
(c) The chief and his or her authorized representatives may issue
subpoenas to compel the attendance of witnesses and the production of
books, papers, records, and physical materials, administer oaths,
examine witnesses under oath, take verification or proof of written
materials, and take depositions and affidavits for the purpose of
carrying out the duties of the division.
(d) In the course of any investigation or inspection of an
employer or place of employment by an authorized representative of
the division, a representative of the employer and a representative
authorized by his or her employees shall have an opportunity to
accompany him or her on the tour of inspection. Any employee or
employer, or their authorized representatives, shall have the right
to discuss safety and health violations or safety and health problems
with the inspector privately during the course of an investigation
or inspection. Where there is no authorized employee representative,
the chief or his or her authorized representatives shall consult with
a reasonable number of employees concerning matters of health and
safety of the place of employment.
(e) During any investigation of an industrial accident or
occupational illness conducted by the division pursuant to the
provisions of Section 6313, the chief or his or her authorized
representative may issue an order to preserve physical materials or
the accident site as they were at the time the accident or illness
occurred if, in the opinion of the division, it is necessary to do so
in order to determine the cause or causes of the accident or
illness, and the evidence is in potential danger of being removed,
altered, or tampered with. Under these circumstances, the division
shall issue that order in a manner that will avoid, to the extent
possible, any interference with normal business operations.
A conspicuous notice that an order has been issued shall be
prepared by the division and shall be posted by the employer in the
area or on the article to be preserved. The order shall be limited to
the immediate area and the machines, devices, apparatus, or
equipment directly associated with the accident or illness.
Any person who knowingly violates an order issued by the division
pursuant to this subdivision shall, upon conviction, be punished by a
fine of not more than five thousand dollars ($5,000).
6314.1. (a) The division shall establish a program for targeting
employers in high hazardous industries with the highest incidence of
preventable occupational injuries and illnesses and workers'
compensation losses. The employers shall be identified from any or
all of the following data sources: the California Work Injury and
Illness program, the Occupational Injuries and Illness Survey, the
federal hazardous employers' list, experience modification and other
relevant data maintained and furnished by all rating organizations as
defined in Section 11750.1 of the Insurance Code, histories of
violations of Occupational Safety and Health Act standards, and any
other source deemed to be appropriate that identifies injury and
illness rates.
(b) The division shall establish procedures for ensuring that the
highest hazardous employers in the most hazardous industries are
inspected on a priority basis. The division may send a letter to the
high hazard employers who are identified pursuant to this section
informing them of their status and directing them to submit a plan,
including the establishment of joint labor-management health and
safety committees, within a time determined by the division for
reducing their occupational injury and illness rates. Employers who
submit plans that meet the requirements of the division may be placed
on a secondary inspection schedule. Employers on that schedule shall
be inspected on a random basis as determined by the division.
Employers who do not submit plans meeting the requirements of the
division within the time specified by the division shall be placed on
the primary inspection list. Every employer on the primary
inspection list shall be subject to an inspection. The division shall
employ sufficient personnel to meet minimum federal targeted
inspection standards.
(c) The division shall establish and maintain regional plans for
allocating the division's resources for the targeted inspection
program in addition to the inspections required or authorized in
Sections 6309, 6313, and 6320. Each regional plan shall focus on
industries selected from the targeted inspection program as well as
any other scheduled inspections that the division determines to be
appropriate to the region, including the cleanup of hazardous waste
sites. All targeted inspections shall be conducted on a priority
basis, targeting the worst employers first.
(d) In order to maximize the impact of the regional plans, the
division shall coordinate its education, training, and consulting
services with the priorities established in the regional plans.
6314.5. (a) Every inspection conducted by the division shall
include an evaluation of the employer's injury prevention program
established pursuant to Section 6401.7. The division shall evaluate
injury prevention programs using the criteria for substantial
compliance determined by the standards board. The evaluation shall
include interviews with a sample of employees and the members of any
employer-employee occupational safety and health committee. In any
inspection which includes work for which a permit is required
pursuant to Section 6500 and for which a permit has been issued
pursuant to Section 6502, the evaluation of the employer's injury
prevention program shall be limited to the implementation of the plan
approved by the division in the issuance of the permit. Before any
inspection is concluded, the division shall notify the employer of
the services available from the department to assist the employer to
establish, maintain, improve, and evaluate the employer's injury
prevention program.
(b) Inspections also shall include an evaluation of the following:
(1) The condition or conditions alleged in the complaint if the
inspection is conducted pursuant to Section 6309.
(2) The condition or conditions involved in the accident if the
inspection is conducted pursuant to Section 6313.
(3) The condition or conditions involving work for which a permit
is required pursuant to Section 6500, for which notification of
asbestos related work is required pursuant to Section 6501.5, or for
which a report of use of a carcinogen is required pursuant to Section
9030.
(4) The condition or conditions related to significant safety or
health hazards in the industries identified in the regional plans
developed pursuant to Section 6314.1.
(5) The condition or conditions involved in abatement of previous
violations, special orders, or action orders if the inspection is
conducted pursuant to Section 6320.
(c) The scope of any inspection may be expanded beyond the
evaluations specified in subdivisions (a) and (b) whenever, in the
opinion of the division, a more complete inspection is warranted.
6315. (a) There is within the division a Bureau of Investigations.
The bureau is responsible for directing accident investigations
involving violations of standards, orders, special orders, or Section
25910 of the Health and Safety Code, in which there is a serious
injury to five or more employees, death, or request for prosecution
by a division representative. The bureau shall review inspection
reports involving a serious violation where there have been serious
injuries to one to four employees or a serious exposure, and may
investigate those cases in which the bureau finds criminal violations
may have occurred. The bureau is responsible for preparing cases for
the purpose of prosecution, including evidence and findings.
(b) The division shall provide the bureau with all of the
following:
(1) All initial accident reports.
(2) The division's inspection report for any inspection involving
a serious violation where there is a fatality, and the reports
necessary for the bureau's review required pursuant to subdivision
(a).
(3) Any other documents in the possession of the division
requested by the bureau for its review or investigation of any case
or which the division determines will be helpful to the bureau in its
investigation of the case.
(c) The supervisor of the bureau is the administrative chief of
the bureau, and shall be an attorney.
(d) The bureau shall be staffed by as many attorneys and
investigators as are necessary to carry out the purposes of this
chapter. To the extent possible, the attorneys and investigators
shall be experienced in criminal law.
(e) The supervisor of the bureau and bureau representatives
designated by the supervisor have a right of access to all places of
employment necessary to the investigation, may collect any evidence
or samples they deem necessary to an investigation, and have all of
the powers enumerated in Section 6314.
(f) The supervisor of the bureau and bureau representatives
designated by the supervisor may serve all processes and notices
throughout the state.
(g) In any case where the bureau is required to conduct an
investigation, and in which there is a serious injury or death, the
results of the investigation shall be referred in a timely manner by
the bureau to the appropriate prosecuting authority having
jurisdiction for appropriate action, unless the bureau determines
that there is legally insufficient evidence of a violation of the
law. If the bureau determines that there is legally insufficient
evidence of a violation of the law, the bureau shall notify the
appropriate prosecuting authority, if the prosecuting authority
requests notice.
(h) The bureau may communicate with the appropriate prosecuting
authority at any time the bureau deems appropriate.
(i) Upon the request of a county district attorney, the department
may develop a protocol for the referral of cases that may involve
criminal conduct to the appropriate prosecuting authority in lieu of
or in cooperation with an investigation by the bureau. The protocol
shall provide for the voluntary acceptance of referrals after a
review of the case by the prosecuting authority. In cases accepted
for investigation by the prosecuting authority, the protocol shall
provide for cooperation between the prosecuting authority, the
division, and the bureau. Where a referral is declined by the
prosecuting authority, the bureau shall comply with subdivisions (a)
to (h), inclusive.
6315.3. The bureau shall, not later than February 15, annually
submit to the division for submission to the director a report on the
activities of the bureau, including, but not limited to, the
following:
(a) Totals of each type of report provided the bureau under each
category in subdivision (b) of Section 6315.
(b) Totals of each type of case reflecting the number of
investigations and court cases in progress at the start of the
calendar year being reported, investigations completed in the
calendar year, cases referred to appropriate prosecuting authorities
in the calendar year, and investigations and court cases in progress
at the end of the calendar year. The types of cases shall include the
following:
(1) Those that the bureau is required to investigate, divided into
fatalities, serious injuries to five or more employees, and requests
for prosecution from a division representative.
(2) Those that were initiated by the bureau following the review
required in subdivision (a) of Section 6315, divided into serious
injuries to fewer than five employees and serious exposures.
(c) A summary of the dispositions in the calendar year of cases
referred by the bureau to appropriate prosecuting authorities. The
summary shall be divided into the types of cases, as described in
subdivision (b), and shall show at least the violation, the statute
for which the case was referred for prosecution, and the dates of
referral to the bureau for investigation, referral from the bureau
for prosecution, and the final court action if the case was
prosecuted.
(d) A summary of investigations completed in the calendar year
that did not result in a referral for prosecution, divided into the
types of cases as described in subdivision (b), showing the violation
and the reasons for nonreferral.
(e) A summary of the use of the bureau's resources in
accomplishing the bureau's mission.
6315.5. All occupational safety and health standards and orders,
rules, regulations, findings, and decisions of the division made and
entered pursuant to this part are admissible as evidence in any
prosecution for the violation of any provision of this part, and
shall, in every such prosecution, be presumed to be reasonable and
lawful and to fix a reasonable and proper standard and requirement of
safety unless, prior to the institution of the prosecution for such
violation, proceedings for a hearing on a special order are
instituted, or a petition is filed under Section 11426 of the
Government Code.
6316. Except as limited by Chapter 6 (commencing with Section 140)
of Division 1, nothing in this part shall deprive the governing body
of any county, city, or public corporation, board, or department, of
any power or jurisdiction over or relative to any place of
employment.
6317. If, upon inspection or investigation, the division believes
that an employer has violated Section 25910 of the Health and Safety
Code or any standard, rule, order, or regulation established pursuant
to Chapter 6 (commencing with Section 140) of Division 1 of the
Labor Code, or any standard, rule, order, or regulation established
pursuant to this part, it shall with reasonable promptness issue a
citation to the employer. Each citation shall be in writing and shall
describe with particularity the nature of the violation, including a
reference to the provision of the code, standard, rule, regulation,
or order alleged to have been violated. In addition, the citation
shall fix a reasonable time for the abatement of the alleged
violation. The period specified for abatement shall not commence
running until the date the citation or notice is received by
certified mail and the certified mail receipt is signed, or if not
signed, the date the return is made to the post office. If the
division officially and directly delivers the citation or notice to
the employer, the period specified for abatement shall commence
running on the date of the delivery.
A "notice" in lieu of citation may be issued with respect to
violations found in an inspection or investigation which meet either
of the following requirements:
(1) The violations do not have a direct relationship upon the
health or safety of an employee.
(2) The violations do not have an immediate relationship to the
health or safety of an employee, and are of a general or regulatory
nature. A notice in lieu of a citation may be issued only if the
employer agrees to correct the violations within a reasonable time,
as specified by the division, and agrees not to appeal the finding of
the division that the violations exist. A notice issued pursuant to
this paragraph shall have the same effect as a citation for purposes
of establishing repeat violations or a failure to abate. Every notice
shall clearly state the abatement period specified by the division,
that the notice may not be appealed, and that the notice has the same
effect as a citation for purposes of establishing a repeated
violation or a failure to abate. The employer shall indicate
agreement to the provisions and conditions of the notice by his or
her signature on the notice.
Under no circumstances shall a notice be issued in lieu of a
citation if the violations are serious, repeated, willful, or arise
from a failure to abate.
The director shall prescribe guidelines for the issuance of these
notices.
The division may impose a civil penalty against an employer as
specified in Chapter 4 (commencing with Section 6423) of this part. A
notice in lieu of a citation may not be issued if the number of
first instance violations found in the inspection (other than
serious, willful, or repeated violations) is 10 or more violations.
No citation or notice shall be issued by the division for a given
violation or violations after six months have elapsed since
occurrence of the violation.
The director shall prescribe procedures for the issuance of a
citation or notice.
The division shall prepare and maintain records capable of
supplying an inspector with previous citations and notices issued to
an employer.
6317.5. (a) If, upon inspection or investigation, the division
finds that an employer has falsified any materials posted in the
workplace or distributed to employees related to the California
Occupational Safety and Health Act, the division shall issue a
citation to the employer.
(b) Each citation issued pursuant to this section, or a copy or
copies thereof, shall be prominently posted, as prescribed in
regulations issued by the director.
(c) Any employer served with a citation pursuant to subdivision
(a) may appeal to the appeals board pursuant to the provisions of
Chapter 7 (commencing with Section 6600). The appeal shall be subject
to the timeframes and procedures set forth in that chapter.
(d) The provisions of this section are in addition to, and not in
lieu of, all other criminal penalties and civil remedies that may be
applicable to any act leading to issuance of a citation pursuant to
this section.
6317.7. If, upon inspection or investigation, the division finds no
violations pursuant to this chapter, the division with reasonable
promptness shall issue a written notice to the employer specifying
the areas inspected and stating that no violations were found.
The director shall prescribe procedures for the issuance of this
notice.
6318. (a) Each citation issued under Section 6317, and each special
order or action ordered pursuant to Section 6308, or a copy or
copies thereof, shall be prominently posted, as prescribed in
regulations issued by the director, at or near each place a violation
referred to in the citation or order occurred. All postings shall be
maintained for three working days, or until the unsafe condition is
abated, whichever is longer. Following each investigation of an
industrial accident or occupational illness, if no violations are
found, the employer shall post a notice prepared by the division so
indicating for three working days.
(b) When the division verifies abatement of a serious violation or
an order at the time of inspection or upon reinspection, the
employer shall post a notice prepared by the division so indicating
for three working days. In all other cases of abatement of serious
violations, the employer shall post the signed statement confirming
abatement prepared pursuant to Section 6320.
6319. (a) If, after an inspection or investigation, the division
issues a citation pursuant to Section 6317 or an order pursuant to
Section 6308, it shall, within a reasonable time after the
termination of the inspection or investigation, notify the employer
by certified mail of the citation or order, and that the employer has
15 working days from receipt of the notice within which to notify
the appeals board that he or she wishes to contest the citation or
order for any reason set forth in Section 6600 or 6600.5.
(b) Any employer served by certified mail with a notice of civil
penalty may appeal to the appeals board within 15 working days from
receipt of that notice for any reason set forth in Section 6600. If
the citation is issued for a violation involving the condition or
operation of any machine, device, apparatus, or equipment, and a
person other than the employer is obligated to the employer to repair
the machine, device, apparatus, or equipment and to pay any
penalties assessed against the employer, the other person may appeal
to the appeals board within 15 working days of the receipt of the
citation by the employer for any reasons set forth in Section 6600.
(c) The director shall promulgate regulations covering the
assessment of civil penalties under this chapter which give due
consideration to the appropriateness of the penalty with respect to
the following factors:
(1) The size of the business of the employer being charged.
(2) The gravity of the violation.
(3) The good faith of the employer, including timely abatement.
(4) The history of previous violations.
(d) Notwithstanding subdivision (c), if serious injury, illness,
exposure, or death is caused by any serious, willful, or repeated
violation, or by any failure to correct a serious violation within
the time permitted for its correction, the penalty shall not be
reduced for any reason other than the size of the business of the
employer being charged. Whenever the division issues a citation for a
violation covered by this subdivision, it shall notify the employer
of its determination that serious injury, illness, exposure or death
was caused by the violation and shall, upon request, provide the
employer with a copy of the inspection report.
(e) The employer shall not be liable for a civil penalty under
this part for any citation issued by a division representative
providing consulting services pursuant to Sections 6354 and 6355.
(f) Whenever a citation of a self-insured employer for a willful,
or repeat serious violation of the standard adopted pursuant to
Section 6401.7 becomes final, the division shall notify the director
so that a hearing may be held to determine whether good cause exists
to revoke the employer's certificate of consent to self-insure as
provided in Section 3702.
(g) Based upon the evidence, the division may propose appropriate
modifications concerning the characterization of violations and
corresponding modifications to civil penalties as a result thereof.
6319.3. (a) Except as provided in subdivision (b) of this section
and subdivision (j) of Section 6401.7, no civil penalty shall be
assessed against any new employer in the state for a violation of any
standard developed pursuant to subdivision (a) of Section 6401.7 for
a period of one year after the date the new employer establishes a
business in the state.
(b) Subdivision (a) shall only apply to an employer who has made a
good faith effort to comply with any standard developed pursuant to
subdivision (a) of Section 6401.7, but shall not apply if the
employer is found to have committed a serious, willful, or repeated
violation of that standard, or fails to abate the violation and is
assessed a penalty pursuant to Section 6430.
6319.5. Upon a showing by an employer of a good-faith effort to
comply with the abatement requirement of a citation, and that
abatement has not been completed because of factors beyond his
reasonable control, the division, after an opportunity for a hearing,
shall issue an order affirming or modifying the abatement
requirements in such citation.
6320. (a) If, after inspection or investigation, the division
issues a special order, order to take special action, or a citation
for a serious violation, and if at the time of inspection the order
is not complied with or the violation is not abated, the division
shall conduct a reinspection in the following cases:
(1) All inspections or investigations involving a serious
violation of a standard adopted pursuant to Section 6401.7, a special
order or order to take special action, serious violations of those
orders, and serious violations characterized as repeat or willful or
with abatement periods of less than six days. These reinspections
shall be conducted at the end of the period fixed for compliance with
the order or abatement of the violation or within 30 days
thereafter.
(2) At least 20 percent of the inspections or investigations
involving a serious violation not otherwise scheduled for
reinspection. These inspections shall be randomly selected and shall
be conducted at the end of the period fixed for abatement of the
violation or within a reasonable time thereafter.
(b) Whenever a serious violation is not abated at the time of the
initial or subsequent inspection, the division shall require the
employer to submit a signed statement under penalty of perjury that
he or she has complied with the abatement terms within the period
fixed for abatement of the violation. If the statement is not
received by the division within 10 working days after the end of the
period fixed for abatement, the division shall revoke any adjustments
to the civil penalty based on abatement of the violation. The
division shall include on the initial notice of civil penalty a clear
warning of reinspection and automatic revocation of any civil
penalty adjustments based on abatement for failure to submit the
required statement in the time allotted, and of an additional,
potentially substantial monetary penalty for failure to abate the
violation. If the division fails to receive evidence of abatement or
the statement within 10 working days after the end of the abatement
period, the division shall notify the employer that the additional
civil penalty for failure to abate, as provided in Section 6430, will
be assessed retroactive to the end of the abatement period unless
the employer can provide sufficient evidence that the violation was
abated prior to that date. The division shall conduct a reinspection
of serious violations within 45 days following the end of the
abatement period whenever it still has no evidence of abatement.
6321. No person or employer shall be given advance warning of an
inspection or investigation by any authorized representative of the
division unless authorized under provisions of this part.
Only the chief or, in the case of his absence, his authorized
representatives shall have the authority to permit advance notice of
an inspection or investigation. The director shall, as soon as
practicable, set down limitations under which an employer may be
granted advance notice by the chief. In no case, except an imminent
danger to the health or safety of an employee or employees, is
advance notice to be authorized when the investigation or inspection
is to be made as a result of an employee complaint.
Any person who gives advance notice of any inspection to be
conducted, without authority from the chief or his designees, is
guilty of a misdemeanor and shall, upon conviction, be punished by a
fine of not more than one thousand dollars ($1,000) or by
imprisonment for not more than six months, or by both.
6322. All information reported to or otherwise obtained by the
chief or his representatives in connection with any inspection or
proceeding of the division which contains or which might reveal a
trade secret referred to in Section 1905 of Title 18 of the United
States Code, or other information that is confidential pursuant to
Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code, shall be considered confidential, except that
such information may be disclosed to other officers or employees of
the division concerned with carrying out the purposes of the division
or when relevant in any proceeding of the division. The appeals
board, standards board, the courts, or the director shall in any such
proceeding issue such orders as may be appropriate to protect the
confidentiality of trade secrets. Violation of this section is a
misdemeanor.
6323. If the condition of any employment or place of employment or
the operation of any machine, device, apparatus, or equipment
constitutes a serious menace to the lives or safety of persons about
it, the division may apply to the superior court of the county in
which such place of employment, machine, device, apparatus, or
equipment is situated, for an injunction restraining the use or
operation thereof until such condition is corrected.
6324. The application to the superior court accompanied by
affidavit showing that such place of employment, machine, device,
apparatus, or equipment is being operated in violation of a safety
order or standard, or in violation of Section 25910 of the Health and
Safety Code, and that such use or operation constitutes a menace to
the life or safety of any person employed thereabout and accompanied
by a copy of the order or standard applicable thereto is a sufficient
prima facie showing to warrant, in the discretion of the court, the
immediate granting of a temporary restraining order. No bond shall be
required from the division as a prerequisite to the granting of any
restraining order.
6325. When, in the opinion of the division, a place of employment,
machine, device, apparatus, or equipment or any part thereof is in a
dangerous condition, is not properly guarded or is dangerously placed
so as to constitute an imminent hazard to employees, entry therein,
or the use thereof, as the case may be, shall be prohibited by the
division, and a conspicuous notice to that effect shall be attached
thereto. Such prohibition of use shall be limited to the immediate
area in which the imminent hazard exists, and the division shall not
prohibit any entry in or use of a place of employment, machine,
device, apparatus, or equipment, or any part thereof, which is
outside such area of imminent hazard. Such notice shall not be
removed except by an authorized representative of the division, nor
until the place of employment, machine, device, apparatus, or
equipment is made safe and the required safeguards or safety
appliances or devices are provided. This section shall not prevent
the entry or use with the division's knowledge and permission for the
sole purpose of eliminating the dangerous conditions.
6325.5. If the division has reasonable cause to believe that any
workplace contains friable asbestos, and if there appears to be
inadequate protection for employees at that workplace to the hazards
from airborne asbestos fibers, the division may issue an order
prohibiting use.
6326. Every person who, after such notice is attached as provided
in Section 6325, enters any such place of employment, or uses or
operates any such place of employment, machine, device, apparatus, or
equipment before it is made safe and the required safeguards or
safety appliances or devices are provided, or who defaces, destroys
or removes any such notice without the authority of the division, is
guilty of a misdemeanor punishable by a fine of up to one thousand
dollars ($1,000), or up to one year in the county jail, or both.
6327. Once an authorized representative of the division has
prohibited entry in or use of a place of employment, machine, device,
apparatus, or equipment, as specified in Section 6325, the employer
may contest the order and shall be granted, upon request, a hearing
by the division to review the validity of the representative's order.
The hearing shall be held within 24 hours following the employer's
request.
6327.5. If the division arbitrarily or capriciously fails to take
action to prevent or prohibit any conditions or practices in any
employment or place of employment which are such that danger exists
which could reasonably be expected to cause death or serious physical
harm immediately or before the imminence of such danger can be
eliminated through other available means, any employee who may be
injured by reason of such failure, or the representatives of such
employees, may bring an action against the chief of the division in
any appropriate court for a writ of mandate to compel the division to
prevent or prohibit the condition. Nothing contained in this section
shall be deemed to prevent the bringing of a writ of mandate against
any appropriate person or entity as may be provided by law.
6328. The division shall prepare a notice containing pertinent
information regarding safety rules and regulations. The notice shall
contain the address and telephone number of the nearest division
office; a clear explanation of an employee's right to report any
unsafe working conditions; the right to request a safety inspection
by the division for unsafe conditions; the right to refuse to work
under conditions which endanger his life or health; the right to
receive information under the Hazardous Substances Information and
Training Act (Ch. 2.5 (commencing with Section 6360)); posting and
notice requirements of employers and the division; and any other
information the division deems necessary. It shall be supplied to
employers as soon as practical. The division shall promulgate
regulations on the content and the required location and number of
notices which must be posted by employers. Sufficient posters in both
English and Spanish shall be printed to supply employers in this
state.
6329. All money collected for violation of standards, orders, or
special orders of, or for fees paid pursuant to this division shall
be paid into the state treasury to the credit of the General Fund.
The Department of Industrial Relations shall account to the
Department of Finance and the State Controller for all moneys so
received and furnish proper vouchers therefor.
6330. The director shall prepare and submit to the Legislature, not
later than March 1, an annual report on the division activities. The
report shall include, but need not be limited to, the following
information for the previous calendar year:
(a) The amount of funds allocated and spent in enforcement,
education and research, and administration by the division.
(b) Total inspections made, and citations issued by the division.
(c) The number of civil penalties assessed, total amount of fines
collected and the number of appeals heard.
(d) The number of contractors referred to the Contractor's State
License Board for hearing, pursuant to Section 7109.5 of the Business
and Professions Code, and the total number of these cases resulting
in suspension or revocation of a license.
(e) The report from the division prepared by the Bureau of
Investigations for submission to the director pursuant to Section
6315.3.
(f) Recommendations for legislation which improves the ability of
the division to provide safety in places of employment.
The report shall be made to the Speaker of the Assembly and the
Chairman of the Rules Committee of the Senate, for assignment to the
appropriate committee or committees for evaluation.
6331. The division shall enter into a contract for the development
and execution of tests to define safety standards for the use of
positive pressure, closed circuit, breathing apparatus in interior
structural fires. The testing shall define numerically what
constitutes positive pressure in breathing apparatus. The testing
shall also address the issues of the heat of the oxygen coming into
the mask, the condensation inside the mask, the possibility of, and
effect of, moisture condensation in the lungs of the wearer of the
mask, and the risks associated with a dislodgement of the mask in an
interior structural fire situation. The development of these tests
shall utilize the resources of recognized specialists in fire
research to design, conduct, and execute the tests and develop the
standards. The standards board shall adopt or revise safety standards
based on the results of these tests.
The test parameters, the location where the testing will take
place, and the level of expertise required shall be determined by the
Cal-OSHA Self Contained Breathing Apparatus Advisory Committee.
6332. (a) For purposes of this section, the following terms have
the following meanings:
(1) "Community health care worker" means an individual who
provides health care or health care-related services to clients in
home settings.
(2) "Employer" means a person or entity that employs a community
health care worker. "Employer" does not include an individual who is
a recipient of home-based services and who is responsible for hiring
his or her own community health care worker.
(3) "Violence" means a physical assault or a threat of a physical
assault.
(b) Every employer shall keep a record of any violence committed
against a community health care worker and shall file a copy of that
record with the Division of Labor Statistics and Research in the form
and detail and within the time limits prescribed by the Division of
Labor Statistics and Research.
6300. The California Occupational Safety and Health Act of 1973 is
hereby enacted for the purpose of assuring safe and healthful working
conditions for all California working men and women by authorizing
the enforcement of effective standards, assisting and encouraging
employers to maintain safe and healthful working conditions, and by
providing for research, information, education, training, and
enforcement in the field of occupational safety and health.
6301. The definitions set forth in this chapter shall govern the
construction and interpretation of this part.
6302. As used in this division:
(a) "Director" means the Director of Industrial Relations.
(b) "Department" means the Department of Industrial Relations.
(c) "Insurer" includes the State Compensation Insurance Fund and
any private company, corporation, mutual association, and reciprocal
or interinsurance exchange, authorized under the laws of this state
to insure employers against liability for compensation under this
part and under Division 4 (commencing with Section 3201), and any
employer to whom a certificate of consent to self-insure has been
issued.
(d) "Division" means the Division of Occupational Safety and
Health.
(e) "Standards board" means the Occupational Safety and Health
Standards Board, within the department.
(f) "Appeals board" means the Occupational Safety and Health
Appeals Board, within the department.
(g) "Aquaculture" means a form of agriculture as defined in
Section 17 of the Fish and Game Code.
(h) "Serious injury or illness" means any injury or illness
occurring in a place of employment or in connection with any
employment which requires inpatient hospitalization for a period in
excess of 24 hours for other than medical observation or in which an
employee suffers a loss of any member of the body or suffers any
serious degree of permanent disfigurement, but does not include any
injury or illness or death caused by the commission of a Penal Code
violation, except the violation of Section 385 of the Penal Code, or
an accident on a public street or highway.
(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 substantial probability that
death or serious physical harm in the future could result from the
exposure.
6303. (a) "Place of employment" means any place, and the premises
appurtenant thereto, where employment is carried on, except a place
where the health and safety jurisdiction is vested by law in, and
actively exercised by, any state or federal agency other than the
division.
(b) "Employment" includes the carrying on of any trade,
enterprise, project, industry, business, occupation, or work,
including all excavation, demolition, and construction work, or any
process or operation in any way related thereto, in which any person
is engaged or permitted to work for hire, except household domestic
service.
(c) "Employment," for purposes of this division only, also
includes volunteer firefighting when covered by Division 4
(commencing with Section 3200) pursuant to Section 3361.
(d) Subdivision (c) shall become operative on January 1, 2004.
6303.5. Nothing in this division shall be construed to limit the
jurisdiction of the state over any employmment or place of employment
by reason of the exercise of occupational safety and health
jurisdiction by any federal agency if federal jurisdiction is being
exercised under a federal law which expressly authorizes concurrent
state jurisdiction over occupational safety or health issues.
6304. "Employer" shall have the same meaning as in Section 3300.
6304.1. (a) "Employee" means every person who is required or
directed by any employer to engage in any employment or to go to work
or be at any time in any place of employment.
(b) "Employee" also includes volunteer firefighters covered by
Division 4 (commencing with Section 3200) pursuant to Section 3361.
(c) Subdivision (b) shall become operative on January 1, 2004.
(d) This act does not affect claims that arose pursuant to
Division 5 of this code between January 1, 2002, and the effective
date of this act.
6304.2. Notwithstanding Section 6413, and except as provided in
Sections 6304. 3 and 6304.4, any state prisoner engaged in
correctional industry, as defined by the Department of Corrections,
shall be deemed to be an "employee," and the Department of
Corrections shall be deemed to be an "employer," with regard to such
prisoners for the purposes of this part.
6304.3. (a) A Correctional Industry Safety Committee shall be
established in accordance with Department of Corrections
administrative procedures at each facility maintaining a correctional
industry, as defined by the Department of Corrections. The Division
of Occupational Safety and Health shall promulgate, and the
Department of Corrections shall implement, regulations concerning the
duties and functions which shall govern the operation of each such
committee.
(b) All complaints alleging unsafe or unhealthy working conditions
in a correctional industry shall initially be directed to the
Correctional Industry Safety Committee of the facility prison. The
committee shall attempt to resolve all complaints.
If a complaint is not resolved by the committee within 15 calendar
days, the complaint shall be referred by the committee to the
division where it shall be reviewed. When the division receives a
complaint which, in its determination, constitutes a bona fide
allegation of a safety or health violation, the division shall
summarily investigate the same as soon as possible, but not later
than three working days after receipt of a complaint charging a
serious violation, as defined in Section 6309, and not later than 14
calendar days after receipt of a complaint charging a nonserious
violation.
(c) Except as provided in subdivision (b) and in Section 6313, the
inspection or investigation of a facility maintaining a correctional
industry, as defined by the Department of Corrections, shall be
discretionary with the division.
(d) Notwithstanding Section 6321, the division may give advance
notice of an inspection or investigation and may postpone the same if
such action is necessary for the maintenance of security at the
facility where the inspection or investigation is to be held, or for
insuring the safety and health of the division's representative who
will be conducting such inspection or investigation.
6304.4. A prisoner engaged in correctional industry, as defined by
the Department of Corrections, shall not be considered an employee
for purposes of the provisions relating to appeal proceedings set
forth in Chapter 7 (commencing with Section 6600).
6304.5. It is the intent of the Legislature that the provisions of
this division, and the occupational safety and health standards and
orders promulgated under this code, are applicable to proceedings
against employers for the exclusive purpose of maintaining and
enforcing employee safety.
Neither the issuance of, or failure to issue, a citation by the
division shall have any application to, nor be considered in, nor be
admissible into, evidence in any personal injury or wrongful death
action, except as between an employee and his or her own employer.
Sections 452 and 669 of the Evidence Code shall apply to this
division and to occupational safety and health standards adopted
under this division in the same manner as any other statute,
ordinance, or regulation. The testimony of employees of the division
shall not be admissible as expert opinion or with respect to the
application of occupational safety and health standards. It is the
intent of the Legislature that the amendments to this section enacted
in the 1999-2000 Regular Session shall not abrogate the holding in
Brock v. State of California (1978) 8l Cal.App.3d 752.
6305. (a) "Occupational safety and health standards and orders"
means standards and orders adopted by the standards board pursuant to
Chapter 6 (commencing with Section 140) of Division 1 and general
orders heretofore adopted by the Industrial Safety Board or the
Industrial Accident Commission.
(b) "Special order" means any order written by the chief or the
chief's authorized representative to correct an unsafe condition,
device, or place of employment which poses a threat to the health or
safety of an employee and which cannot be made safe under existing
standards or orders of the standards board. These orders shall have
the same effect as any other standard or order of the standards
board, but shall apply only to the employment or place of employment
described in the written order of the chief's authorized
representative.
6306. (a) "Safe," "safety," and "health" as applied to an
employment or a place of employment mean such freedom from danger to
the life, safety, or health of employees as the nature of the
employment reasonably permits.
(b) "Safety device" and "safeguard" shall be given a broad
interpretation so as to include any practicable method of mitigating
or preventing a specific danger, including the danger of exposure to
potentially injurious levels of ionizing radiation or potentially
injurious quantities of radioactive materials.
6307. The division has the power, jurisdiction, and supervision
over every employment and place of employment in this state, which is
necessary adequately to enforce and administer all laws and lawful
standards and orders, or special orders requiring such employment and
place of employment to be safe, and requiring the protection of the
life, safety, and health of every employee in such employment or
place of employment.
6307.1. The State Department of Health Services shall assist the
division in the enforcement of Section 25910 of the Health and Safety
Code in the manner prescribed by a written agreement between the
State Department of Health Services and the Department of Industrial
Relations, pursuant to Section 144.
6308. The division, in enforcing occupational safety and health
standards and orders and special orders may do any of the following:
(a) Declare and prescribe what safety devices, safeguards, or
other means or methods of protection are well adapted to render the
employees of every employment and place of employment safe as
required by law or lawful order.
(b) Enforce Section 25910 of the Health and Safety Code and
standards and orders adopted by the standards board pursuant to
Chapter 6 (commencing with Section 140) of Division 1 of the Labor
Code, for the installation, use, maintenance, and operation of
reasonable uniform safety devices, safeguards, and other means or
methods of protection, which are necessary to carry out all laws and
lawful standards or special orders relative to the protection of the
life and safety of employees in employments and places of employment.
(c) Require the performance of any other act which the protection
of the life and safety of the employees in employments and places of
employment reasonably demands.
An employer may request a hearing on a special order or action
ordered pursuant to this section, at which the employer, owner, or
any other person may appear. The appeals board shall conduct the
hearing at the earliest possible time.
All orders, rules, regulations, findings, and decisions of the
division made or entered under this part, except special orders and
action orders, may be reviewed by the Supreme Court and the courts of
appeal as may be provided by law.
6308.5. Hearings conducted by the division pursuant to this part
shall give any affected employer or other affected person the
opportunity to submit facts or arguments, but may be conducted
informally, either orally or in writing.
6309. If the division learns or has reason to believe that an
employment or place of employment is not safe or is injurious to the
welfare of an employee, it may, on its own motion, or upon complaint,
summarily investigate the same with or without notice or hearings.
However, if the division receives a complaint from an employee, an
employee's representative, including, but not limited to, an
attorney, health or safety professional, union representative, or
government agency representative, or an employer of an employee
directly involved in an unsafe place of employment, that his or her
employment or place of employment is not safe, it shall, with or
without notice or hearing, summarily investigate the complaint as
soon as possible, but not later than three working days after receipt
of a complaint charging a serious violation, and not later than 14
calendar days after receipt of a complaint charging a nonserious
violation. The division shall attempt to determine the period of time
in the future that the complainant believes the unsafe condition may
continue to exist, and shall allocate inspection resources so as to
respond first to those situations in which time is of the essence.
For purposes of this section, a complaint is deemed to allege a
serious violation if the division determines that the complaint
charges that there is a substantial probability that death or serious
physical harm could result from a condition which exists, or from
one or more practices, means, methods, operations, or processes which
have been adopted or are in use in a place of employment. When a
complaint charging a serious violation is received from a state or
local prosecutor, or a local law enforcement agency, the division
shall summarily investigate the employment or place of employment
within 24 hours of receipt of the complaint. All other complaints are
deemed to allege nonserious violations. The division may enter and
serve any necessary order relative thereto. The division is not
required to respond to a complaint within this period where, from the
facts stated in the complaint, it determines that the complaint is
intended to willfully harass an employer or is without any reasonable
basis.
The division shall keep complete and accurate records of all
complaints, whether verbal or written, and shall inform the
complainant, whenever his or her identity is known, of any action
taken by the division in regard to the subject matter of the
complaint, and the reasons for the action, within 14 calendar days of
taking any action. The records of the division shall include the
dates on which any action was taken on the complaint, or the reasons
for not taking any action on the complaint. The division shall,
pursuant to authorized regulations, conduct an informal review of any
refusal by a representative of the division to issue a citation with
respect to an alleged violation. The division shall furnish the
employee or the representative of employees requesting the review a
written statement of the reasons for the division's final disposition
of the case.
The name of a person who submits to the division a complaint
regarding the unsafe condition of an employment or place of
employment shall be kept confidential by the division, unless that
person requests otherwise.
The division shall annually compile and release on its Web site
data pertaining to complaints received and citations issued.
The requirements of this section do not relieve the division of
its requirement to inspect and assure that all places of employment
are safe and healthful for employees. The division shall maintain the
capability to receive and act upon complaints at all times.
6310. (a) No person shall discharge or in any manner discriminate
against any employee because the employee has done any of the
following:
(1) Made any oral or written complaint to the division, other
governmental agencies having statutory responsibility for or
assisting the division with reference to employee safety or health,
his or her employer, or his or her representative.
(2) Instituted or caused to be instituted any proceeding under or
relating to his or her rights or has testified or is about to testify
in the proceeding or because of the exercise by the employee on
behalf of himself, herself, or others of any rights afforded him or
her.
(3) Participated in an occupational health and safety committee
established pursuant to Section 6401.7.
(b) Any employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated against in
the terms and conditions of employment by his or her employer because
the employee has made a bona fide oral or written complaint to the
division, other governmental agencies having statutory responsibility
for or assisting the division with reference to employee safety or
health, his or her employer, or his or her representative, of unsafe
working conditions, or work practices, in his or her employment or
place of employment, or has participated in an employer-employee
occupational health and safety committee, shall be entitled to
reinstatement and reimbursement for lost wages and work benefits
caused by the acts of the employer. Any employer who willfully
refuses to rehire, promote, or otherwise restore an employee or
former employee who has been determined to be eligible for rehiring
or promotion by a grievance procedure, arbitration, or hearing
authorized by law, is guilty of a misdemeanor.
6311. No employee shall be laid off or discharged for refusing to
perform work in the performance of which this code, including Section
6400, any occupational safety or health standard or any safety order
of the division or standards board will be violated, where the
violation would create a real and apparent hazard to the employee or
his or her fellow employees. Any employee who is laid off or
discharged in violation of this section or is otherwise not paid
because he or she refused to perform work in the performance of which
this code, any occupational safety or health standard or any safety
order of the division or standards board will be violated and where
the violation would create a real and apparent hazard to the employee
or his or her fellow employees shall have a right of action for
wages for the time the employee is without work as a result of the
layoff or discharge.
6312. Any employee who believes that he or she has been discharged
or otherwise discriminated against by any person in violation of
Section 6310 or 6311 may file a complaint with the Labor Commissioner
pursuant to Section 98.7.
6313. (a) The division shall investigate the causes of any
employment accident that is fatal to one or more employees or that
results in a serious injury or illness, or a serious exposure, unless
it determines that an investigation is unnecessary. If the division
determines that an investigation of an accident is unnecessary, it
shall summarize the facts indicating that the accident need not be
investigated and the means by which the facts were determined. The
division shall establish guidelines for determining the circumstances
under which an investigation of these accidents and exposures is
unnecessary.
(b) The division may investigate the causes of any other
industrial accident or occupational illness which occurs within the
state in any employment or place of employment, or which directly or
indirectly arises from or is connected with the maintenance or
operation of the employment or place of employment, and shall issue
any orders necessary to eliminate the causes and to prevent
reoccurrence. The orders may not be admitted as evidence in any
action for damages, or any proceeding to recover compensation, based
on or arising out of injury or death caused by the accident or
illness.
6313.5. The division shall transmit to the Registrar of Contractors
copies of any reports made in any investigation conducted pursuant
to subdivision (a) of Section 6313, and may, upon its own motion or
at the request of the Registrar of Contractors, transmit copies of
any other reports made in any investigation conducted pursuant to
subdivision (b) of Section 6313 involving a contractor licensed
pursuant to the Contractors License Law (Chapter 9 (commencing with
Section 7000) of Divison 3 of the Business and Professions Code).
6314. (a) To make an investigation or inspection, the chief of the
division and all qualified divisional inspectors and investigators
authorized by him or her shall, upon presenting appropriate
credentials to the employer, have free access to any place of
employment to investigate and inspect during regular working hours,
and at other reasonable times when necessary for the protection of
safety and health, and within reasonable limits and in a reasonable
manner. The chief or his or her authorized representative may, during
the course of any investigation or inspection, obtain any
statistics, information, or any physical materials in the possession
of the employer that are directly related to the purpose of the
investigation or inspection, conduct any tests necessary to the
investigation or inspection, and take photographs. Photographs taken
by the division during the course of any investigation or inspection
shall be considered to be confidential information pursuant to the
provisions of Section 6322, and shall not be deemed to be public
records for purposes of the California Public Records Act.
(b) If permission to investigate or inspect the place of
employment is refused, or the facts or circumstances reasonably
justify the failure to seek permission, the chief or his or her
authorized representative may obtain an inspection warrant pursuant
to the provisions of Title 13 (commencing with Section 1822.50) of
the Code of Civil Procedure. Cause for the issuance of a warrant
shall be deemed to exist if there has been an industrial accident,
injury, or illness reported, if any complaint that violations of
occupational safety and health standards exist at the place of
employment has been received by the division, or if the place of
employment to be inspected has been chosen on the basis of specific
neutral criteria contained in a general administrative plan for the
enforcement of this division.
(c) The chief and his or her authorized representatives may issue
subpoenas to compel the attendance of witnesses and the production of
books, papers, records, and physical materials, administer oaths,
examine witnesses under oath, take verification or proof of written
materials, and take depositions and affidavits for the purpose of
carrying out the duties of the division.
(d) In the course of any investigation or inspection of an
employer or place of employment by an authorized representative of
the division, a representative of the employer and a representative
authorized by his or her employees shall have an opportunity to
accompany him or her on the tour of inspection. Any employee or
employer, or their authorized representatives, shall have the right
to discuss safety and health violations or safety and health problems
with the inspector privately during the course of an investigation
or inspection. Where there is no authorized employee representative,
the chief or his or her authorized representatives shall consult with
a reasonable number of employees concerning matters of health and
safety of the place of employment.
(e) During any investigation of an industrial accident or
occupational illness conducted by the division pursuant to the
provisions of Section 6313, the chief or his or her authorized
representative may issue an order to preserve physical materials or
the accident site as they were at the time the accident or illness
occurred if, in the opinion of the division, it is necessary to do so
in order to determine the cause or causes of the accident or
illness, and the evidence is in potential danger of being removed,
altered, or tampered with. Under these circumstances, the division
shall issue that order in a manner that will avoid, to the extent
possible, any interference with normal business operations.
A conspicuous notice that an order has been issued shall be
prepared by the division and shall be posted by the employer in the
area or on the article to be preserved. The order shall be limited to
the immediate area and the machines, devices, apparatus, or
equipment directly associated with the accident or illness.
Any person who knowingly violates an order issued by the division
pursuant to this subdivision shall, upon conviction, be punished by a
fine of not more than five thousand dollars ($5,000).
6314.1. (a) The division shall establish a program for targeting
employers in high hazardous industries with the highest incidence of
preventable occupational injuries and illnesses and workers'
compensation losses. The employers shall be identified from any or
all of the following data sources: the California Work Injury and
Illness program, the Occupational Injuries and Illness Survey, the
federal hazardous employers' list, experience modification and other
relevant data maintained and furnished by all rating organizations as
defined in Section 11750.1 of the Insurance Code, histories of
violations of Occupational Safety and Health Act standards, and any
other source deemed to be appropriate that identifies injury and
illness rates.
(b) The division shall establish procedures for ensuring that the
highest hazardous employers in the most hazardous industries are
inspected on a priority basis. The division may send a letter to the
high hazard employers who are identified pursuant to this section
informing them of their status and directing them to submit a plan,
including the establishment of joint labor-management health and
safety committees, within a time determined by the division for
reducing their occupational injury and illness rates. Employers who
submit plans that meet the requirements of the division may be placed
on a secondary inspection schedule. Employers on that schedule shall
be inspected on a random basis as determined by the division.
Employers who do not submit plans meeting the requirements of the
division within the time specified by the division shall be placed on
the primary inspection list. Every employer on the primary
inspection list shall be subject to an inspection. The division shall
employ sufficient personnel to meet minimum federal targeted
inspection standards.
(c) The division shall establish and maintain regional plans for
allocating the division's resources for the targeted inspection
program in addition to the inspections required or authorized in
Sections 6309, 6313, and 6320. Each regional plan shall focus on
industries selected from the targeted inspection program as well as
any other scheduled inspections that the division determines to be
appropriate to the region, including the cleanup of hazardous waste
sites. All targeted inspections shall be conducted on a priority
basis, targeting the worst employers first.
(d) In order to maximize the impact of the regional plans, the
division shall coordinate its education, training, and consulting
services with the priorities established in the regional plans.
6314.5. (a) Every inspection conducted by the division shall
include an evaluation of the employer's injury prevention program
established pursuant to Section 6401.7. The division shall evaluate
injury prevention programs using the criteria for substantial
compliance determined by the standards board. The evaluation shall
include interviews with a sample of employees and the members of any
employer-employee occupational safety and health committee. In any
inspection which includes work for which a permit is required
pursuant to Section 6500 and for which a permit has been issued
pursuant to Section 6502, the evaluation of the employer's injury
prevention program shall be limited to the implementation of the plan
approved by the division in the issuance of the permit. Before any
inspection is concluded, the division shall notify the employer of
the services available from the department to assist the employer to
establish, maintain, improve, and evaluate the employer's injury
prevention program.
(b) Inspections also shall include an evaluation of the following:
(1) The condition or conditions alleged in the complaint if the
inspection is conducted pursuant to Section 6309.
(2) The condition or conditions involved in the accident if the
inspection is conducted pursuant to Section 6313.
(3) The condition or conditions involving work for which a permit
is required pursuant to Section 6500, for which notification of
asbestos related work is required pursuant to Section 6501.5, or for
which a report of use of a carcinogen is required pursuant to Section
9030.
(4) The condition or conditions related to significant safety or
health hazards in the industries identified in the regional plans
developed pursuant to Section 6314.1.
(5) The condition or conditions involved in abatement of previous
violations, special orders, or action orders if the inspection is
conducted pursuant to Section 6320.
(c) The scope of any inspection may be expanded beyond the
evaluations specified in subdivisions (a) and (b) whenever, in the
opinion of the division, a more complete inspection is warranted.
6315. (a) There is within the division a Bureau of Investigations.
The bureau is responsible for directing accident investigations
involving violations of standards, orders, special orders, or Section
25910 of the Health and Safety Code, in which there is a serious
injury to five or more employees, death, or request for prosecution
by a division representative. The bureau shall review inspection
reports involving a serious violation where there have been serious
injuries to one to four employees or a serious exposure, and may
investigate those cases in which the bureau finds criminal violations
may have occurred. The bureau is responsible for preparing cases for
the purpose of prosecution, including evidence and findings.
(b) The division shall provide the bureau with all of the
following:
(1) All initial accident reports.
(2) The division's inspection report for any inspection involving
a serious violation where there is a fatality, and the reports
necessary for the bureau's review required pursuant to subdivision
(a).
(3) Any other documents in the possession of the division
requested by the bureau for its review or investigation of any case
or which the division determines will be helpful to the bureau in its
investigation of the case.
(c) The supervisor of the bureau is the administrative chief of
the bureau, and shall be an attorney.
(d) The bureau shall be staffed by as many attorneys and
investigators as are necessary to carry out the purposes of this
chapter. To the extent possible, the attorneys and investigators
shall be experienced in criminal law.
(e) The supervisor of the bureau and bureau representatives
designated by the supervisor have a right of access to all places of
employment necessary to the investigation, may collect any evidence
or samples they deem necessary to an investigation, and have all of
the powers enumerated in Section 6314.
(f) The supervisor of the bureau and bureau representatives
designated by the supervisor may serve all processes and notices
throughout the state.
(g) In any case where the bureau is required to conduct an
investigation, and in which there is a serious injury or death, the
results of the investigation shall be referred in a timely manner by
the bureau to the appropriate prosecuting authority having
jurisdiction for appropriate action, unless the bureau determines
that there is legally insufficient evidence of a violation of the
law. If the bureau determines that there is legally insufficient
evidence of a violation of the law, the bureau shall notify the
appropriate prosecuting authority, if the prosecuting authority
requests notice.
(h) The bureau may communicate with the appropriate prosecuting
authority at any time the bureau deems appropriate.
(i) Upon the request of a county district attorney, the department
may develop a protocol for the referral of cases that may involve
criminal conduct to the appropriate prosecuting authority in lieu of
or in cooperation with an investigation by the bureau. The protocol
shall provide for the voluntary acceptance of referrals after a
review of the case by the prosecuting authority. In cases accepted
for investigation by the prosecuting authority, the protocol shall
provide for cooperation between the prosecuting authority, the
division, and the bureau. Where a referral is declined by the
prosecuting authority, the bureau shall comply with subdivisions (a)
to (h), inclusive.
6315.3. The bureau shall, not later than February 15, annually
submit to the division for submission to the director a report on the
activities of the bureau, including, but not limited to, the
following:
(a) Totals of each type of report provided the bureau under each
category in subdivision (b) of Section 6315.
(b) Totals of each type of case reflecting the number of
investigations and court cases in progress at the start of the
calendar year being reported, investigations completed in the
calendar year, cases referred to appropriate prosecuting authorities
in the calendar year, and investigations and court cases in progress
at the end of the calendar year. The types of cases shall include the
following:
(1) Those that the bureau is required to investigate, divided into
fatalities, serious injuries to five or more employees, and requests
for prosecution from a division representative.
(2) Those that were initiated by the bureau following the review
required in subdivision (a) of Section 6315, divided into serious
injuries to fewer than five employees and serious exposures.
(c) A summary of the dispositions in the calendar year of cases
referred by the bureau to appropriate prosecuting authorities. The
summary shall be divided into the types of cases, as described in
subdivision (b), and shall show at least the violation, the statute
for which the case was referred for prosecution, and the dates of
referral to the bureau for investigation, referral from the bureau
for prosecution, and the final court action if the case was
prosecuted.
(d) A summary of investigations completed in the calendar year
that did not result in a referral for prosecution, divided into the
types of cases as described in subdivision (b), showing the violation
and the reasons for nonreferral.
(e) A summary of the use of the bureau's resources in
accomplishing the bureau's mission.
6315.5. All occupational safety and health standards and orders,
rules, regulations, findings, and decisions of the division made and
entered pursuant to this part are admissible as evidence in any
prosecution for the violation of any provision of this part, and
shall, in every such prosecution, be presumed to be reasonable and
lawful and to fix a reasonable and proper standard and requirement of
safety unless, prior to the institution of the prosecution for such
violation, proceedings for a hearing on a special order are
instituted, or a petition is filed under Section 11426 of the
Government Code.
6316. Except as limited by Chapter 6 (commencing with Section 140)
of Division 1, nothing in this part shall deprive the governing body
of any county, city, or public corporation, board, or department, of
any power or jurisdiction over or relative to any place of
employment.
6317. If, upon inspection or investigation, the division believes
that an employer has violated Section 25910 of the Health and Safety
Code or any standard, rule, order, or regulation established pursuant
to Chapter 6 (commencing with Section 140) of Division 1 of the
Labor Code, or any standard, rule, order, or regulation established
pursuant to this part, it shall with reasonable promptness issue a
citation to the employer. Each citation shall be in writing and shall
describe with particularity the nature of the violation, including a
reference to the provision of the code, standard, rule, regulation,
or order alleged to have been violated. In addition, the citation
shall fix a reasonable time for the abatement of the alleged
violation. The period specified for abatement shall not commence
running until the date the citation or notice is received by
certified mail and the certified mail receipt is signed, or if not
signed, the date the return is made to the post office. If the
division officially and directly delivers the citation or notice to
the employer, the period specified for abatement shall commence
running on the date of the delivery.
A "notice" in lieu of citation may be issued with respect to
violations found in an inspection or investigation which meet either
of the following requirements:
(1) The violations do not have a direct relationship upon the
health or safety of an employee.
(2) The violations do not have an immediate relationship to the
health or safety of an employee, and are of a general or regulatory
nature. A notice in lieu of a citation may be issued only if the
employer agrees to correct the violations within a reasonable time,
as specified by the division, and agrees not to appeal the finding of
the division that the violations exist. A notice issued pursuant to
this paragraph shall have the same effect as a citation for purposes
of establishing repeat violations or a failure to abate. Every notice
shall clearly state the abatement period specified by the division,
that the notice may not be appealed, and that the notice has the same
effect as a citation for purposes of establishing a repeated
violation or a failure to abate. The employer shall indicate
agreement to the provisions and conditions of the notice by his or
her signature on the notice.
Under no circumstances shall a notice be issued in lieu of a
citation if the violations are serious, repeated, willful, or arise
from a failure to abate.
The director shall prescribe guidelines for the issuance of these
notices.
The division may impose a civil penalty against an employer as
specified in Chapter 4 (commencing with Section 6423) of this part. A
notice in lieu of a citation may not be issued if the number of
first instance violations found in the inspection (other than
serious, willful, or repeated violations) is 10 or more violations.
No citation or notice shall be issued by the division for a given
violation or violations after six months have elapsed since
occurrence of the violation.
The director shall prescribe procedures for the issuance of a
citation or notice.
The division shall prepare and maintain records capable of
supplying an inspector with previous citations and notices issued to
an employer.
6317.5. (a) If, upon inspection or investigation, the division
finds that an employer has falsified any materials posted in the
workplace or distributed to employees related to the California
Occupational Safety and Health Act, the division shall issue a
citation to the employer.
(b) Each citation issued pursuant to this section, or a copy or
copies thereof, shall be prominently posted, as prescribed in
regulations issued by the director.
(c) Any employer served with a citation pursuant to subdivision
(a) may appeal to the appeals board pursuant to the provisions of
Chapter 7 (commencing with Section 6600). The appeal shall be subject
to the timeframes and procedures set forth in that chapter.
(d) The provisions of this section are in addition to, and not in
lieu of, all other criminal penalties and civil remedies that may be
applicable to any act leading to issuance of a citation pursuant to
this section.
6317.7. If, upon inspection or investigation, the division finds no
violations pursuant to this chapter, the division with reasonable
promptness shall issue a written notice to the employer specifying
the areas inspected and stating that no violations were found.
The director shall prescribe procedures for the issuance of this
notice.
6318. (a) Each citation issued under Section 6317, and each special
order or action ordered pursuant to Section 6308, or a copy or
copies thereof, shall be prominently posted, as prescribed in
regulations issued by the director, at or near each place a violation
referred to in the citation or order occurred. All postings shall be
maintained for three working days, or until the unsafe condition is
abated, whichever is longer. Following each investigation of an
industrial accident or occupational illness, if no violations are
found, the employer shall post a notice prepared by the division so
indicating for three working days.
(b) When the division verifies abatement of a serious violation or
an order at the time of inspection or upon reinspection, the
employer shall post a notice prepared by the division so indicating
for three working days. In all other cases of abatement of serious
violations, the employer shall post the signed statement confirming
abatement prepared pursuant to Section 6320.
6319. (a) If, after an inspection or investigation, the division
issues a citation pursuant to Section 6317 or an order pursuant to
Section 6308, it shall, within a reasonable time after the
termination of the inspection or investigation, notify the employer
by certified mail of the citation or order, and that the employer has
15 working days from receipt of the notice within which to notify
the appeals board that he or she wishes to contest the citation or
order for any reason set forth in Section 6600 or 6600.5.
(b) Any employer served by certified mail with a notice of civil
penalty may appeal to the appeals board within 15 working days from
receipt of that notice for any reason set forth in Section 6600. If
the citation is issued for a violation involving the condition or
operation of any machine, device, apparatus, or equipment, and a
person other than the employer is obligated to the employer to repair
the machine, device, apparatus, or equipment and to pay any
penalties assessed against the employer, the other person may appeal
to the appeals board within 15 working days of the receipt of the
citation by the employer for any reasons set forth in Section 6600.
(c) The director shall promulgate regulations covering the
assessment of civil penalties under this chapter which give due
consideration to the appropriateness of the penalty with respect to
the following factors:
(1) The size of the business of the employer being charged.
(2) The gravity of the violation.
(3) The good faith of the employer, including timely abatement.
(4) The history of previous violations.
(d) Notwithstanding subdivision (c), if serious injury, illness,
exposure, or death is caused by any serious, willful, or repeated
violation, or by any failure to correct a serious violation within
the time permitted for its correction, the penalty shall not be
reduced for any reason other than the size of the business of the
employer being charged. Whenever the division issues a citation for a
violation covered by this subdivision, it shall notify the employer
of its determination that serious injury, illness, exposure or death
was caused by the violation and shall, upon request, provide the
employer with a copy of the inspection report.
(e) The employer shall not be liable for a civil penalty under
this part for any citation issued by a division representative
providing consulting services pursuant to Sections 6354 and 6355.
(f) Whenever a citation of a self-insured employer for a willful,
or repeat serious violation of the standard adopted pursuant to
Section 6401.7 becomes final, the division shall notify the director
so that a hearing may be held to determine whether good cause exists
to revoke the employer's certificate of consent to self-insure as
provided in Section 3702.
(g) Based upon the evidence, the division may propose appropriate
modifications concerning the characterization of violations and
corresponding modifications to civil penalties as a result thereof.
6319.3. (a) Except as provided in subdivision (b) of this section
and subdivision (j) of Section 6401.7, no civil penalty shall be
assessed against any new employer in the state for a violation of any
standard developed pursuant to subdivision (a) of Section 6401.7 for
a period of one year after the date the new employer establishes a
business in the state.
(b) Subdivision (a) shall only apply to an employer who has made a
good faith effort to comply with any standard developed pursuant to
subdivision (a) of Section 6401.7, but shall not apply if the
employer is found to have committed a serious, willful, or repeated
violation of that standard, or fails to abate the violation and is
assessed a penalty pursuant to Section 6430.
6319.5. Upon a showing by an employer of a good-faith effort to
comply with the abatement requirement of a citation, and that
abatement has not been completed because of factors beyond his
reasonable control, the division, after an opportunity for a hearing,
shall issue an order affirming or modifying the abatement
requirements in such citation.
6320. (a) If, after inspection or investigation, the division
issues a special order, order to take special action, or a citation
for a serious violation, and if at the time of inspection the order
is not complied with or the violation is not abated, the division
shall conduct a reinspection in the following cases:
(1) All inspections or investigations involving a serious
violation of a standard adopted pursuant to Section 6401.7, a special
order or order to take special action, serious violations of those
orders, and serious violations characterized as repeat or willful or
with abatement periods of less than six days. These reinspections
shall be conducted at the end of the period fixed for compliance with
the order or abatement of the violation or within 30 days
thereafter.
(2) At least 20 percent of the inspections or investigations
involving a serious violation not otherwise scheduled for
reinspection. These inspections shall be randomly selected and shall
be conducted at the end of the period fixed for abatement of the
violation or within a reasonable time thereafter.
(b) Whenever a serious violation is not abated at the time of the
initial or subsequent inspection, the division shall require the
employer to submit a signed statement under penalty of perjury that
he or she has complied with the abatement terms within the period
fixed for abatement of the violation. If the statement is not
received by the division within 10 working days after the end of the
period fixed for abatement, the division shall revoke any adjustments
to the civil penalty based on abatement of the violation. The
division shall include on the initial notice of civil penalty a clear
warning of reinspection and automatic revocation of any civil
penalty adjustments based on abatement for failure to submit the
required statement in the time allotted, and of an additional,
potentially substantial monetary penalty for failure to abate the
violation. If the division fails to receive evidence of abatement or
the statement within 10 working days after the end of the abatement
period, the division shall notify the employer that the additional
civil penalty for failure to abate, as provided in Section 6430, will
be assessed retroactive to the end of the abatement period unless
the employer can provide sufficient evidence that the violation was
abated prior to that date. The division shall conduct a reinspection
of serious violations within 45 days following the end of the
abatement period whenever it still has no evidence of abatement.
6321. No person or employer shall be given advance warning of an
inspection or investigation by any authorized representative of the
division unless authorized under provisions of this part.
Only the chief or, in the case of his absence, his authorized
representatives shall have the authority to permit advance notice of
an inspection or investigation. The director shall, as soon as
practicable, set down limitations under which an employer may be
granted advance notice by the chief. In no case, except an imminent
danger to the health or safety of an employee or employees, is
advance notice to be authorized when the investigation or inspection
is to be made as a result of an employee complaint.
Any person who gives advance notice of any inspection to be
conducted, without authority from the chief or his designees, is
guilty of a misdemeanor and shall, upon conviction, be punished by a
fine of not more than one thousand dollars ($1,000) or by
imprisonment for not more than six months, or by both.
6322. All information reported to or otherwise obtained by the
chief or his representatives in connection with any inspection or
proceeding of the division which contains or which might reveal a
trade secret referred to in Section 1905 of Title 18 of the United
States Code, or other information that is confidential pursuant to
Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code, shall be considered confidential, except that
such information may be disclosed to other officers or employees of
the division concerned with carrying out the purposes of the division
or when relevant in any proceeding of the division. The appeals
board, standards board, the courts, or the director shall in any such
proceeding issue such orders as may be appropriate to protect the
confidentiality of trade secrets. Violation of this section is a
misdemeanor.
6323. If the condition of any employment or place of employment or
the operation of any machine, device, apparatus, or equipment
constitutes a serious menace to the lives or safety of persons about
it, the division may apply to the superior court of the county in
which such place of employment, machine, device, apparatus, or
equipment is situated, for an injunction restraining the use or
operation thereof until such condition is corrected.
6324. The application to the superior court accompanied by
affidavit showing that such place of employment, machine, device,
apparatus, or equipment is being operated in violation of a safety
order or standard, or in violation of Section 25910 of the Health and
Safety Code, and that such use or operation constitutes a menace to
the life or safety of any person employed thereabout and accompanied
by a copy of the order or standard applicable thereto is a sufficient
prima facie showing to warrant, in the discretion of the court, the
immediate granting of a temporary restraining order. No bond shall be
required from the division as a prerequisite to the granting of any
restraining order.
6325. When, in the opinion of the division, a place of employment,
machine, device, apparatus, or equipment or any part thereof is in a
dangerous condition, is not properly guarded or is dangerously placed
so as to constitute an imminent hazard to employees, entry therein,
or the use thereof, as the case may be, shall be prohibited by the
division, and a conspicuous notice to that effect shall be attached
thereto. Such prohibition of use shall be limited to the immediate
area in which the imminent hazard exists, and the division shall not
prohibit any entry in or use of a place of employment, machine,
device, apparatus, or equipment, or any part thereof, which is
outside such area of imminent hazard. Such notice shall not be
removed except by an authorized representative of the division, nor
until the place of employment, machine, device, apparatus, or
equipment is made safe and the required safeguards or safety
appliances or devices are provided. This section shall not prevent
the entry or use with the division's knowledge and permission for the
sole purpose of eliminating the dangerous conditions.
6325.5. If the division has reasonable cause to believe that any
workplace contains friable asbestos, and if there appears to be
inadequate protection for employees at that workplace to the hazards
from airborne asbestos fibers, the division may issue an order
prohibiting use.
6326. Every person who, after such notice is attached as provided
in Section 6325, enters any such place of employment, or uses or
operates any such place of employment, machine, device, apparatus, or
equipment before it is made safe and the required safeguards or
safety appliances or devices are provided, or who defaces, destroys
or removes any such notice without the authority of the division, is
guilty of a misdemeanor punishable by a fine of up to one thousand
dollars ($1,000), or up to one year in the county jail, or both.
6327. Once an authorized representative of the division has
prohibited entry in or use of a place of employment, machine, device,
apparatus, or equipment, as specified in Section 6325, the employer
may contest the order and shall be granted, upon request, a hearing
by the division to review the validity of the representative's order.
The hearing shall be held within 24 hours following the employer's
request.
6327.5. If the division arbitrarily or capriciously fails to take
action to prevent or prohibit any conditions or practices in any
employment or place of employment which are such that danger exists
which could reasonably be expected to cause death or serious physical
harm immediately or before the imminence of such danger can be
eliminated through other available means, any employee who may be
injured by reason of such failure, or the representatives of such
employees, may bring an action against the chief of the division in
any appropriate court for a writ of mandate to compel the division to
prevent or prohibit the condition. Nothing contained in this section
shall be deemed to prevent the bringing of a writ of mandate against
any appropriate person or entity as may be provided by law.
6328. The division shall prepare a notice containing pertinent
information regarding safety rules and regulations. The notice shall
contain the address and telephone number of the nearest division
office; a clear explanation of an employee's right to report any
unsafe working conditions; the right to request a safety inspection
by the division for unsafe conditions; the right to refuse to work
under conditions which endanger his life or health; the right to
receive information under the Hazardous Substances Information and
Training Act (Ch. 2.5 (commencing with Section 6360)); posting and
notice requirements of employers and the division; and any other
information the division deems necessary. It shall be supplied to
employers as soon as practical. The division shall promulgate
regulations on the content and the required location and number of
notices which must be posted by employers. Sufficient posters in both
English and Spanish shall be printed to supply employers in this
state.
6329. All money collected for violation of standards, orders, or
special orders of, or for fees paid pursuant to this division shall
be paid into the state treasury to the credit of the General Fund.
The Department of Industrial Relations shall account to the
Department of Finance and the State Controller for all moneys so
received and furnish proper vouchers therefor.
6330. The director shall prepare and submit to the Legislature, not
later than March 1, an annual report on the division activities. The
report shall include, but need not be limited to, the following
information for the previous calendar year:
(a) The amount of funds allocated and spent in enforcement,
education and research, and administration by the division.
(b) Total inspections made, and citations issued by the division.
(c) The number of civil penalties assessed, total amount of fines
collected and the number of appeals heard.
(d) The number of contractors referred to the Contractor's State
License Board for hearing, pursuant to Section 7109.5 of the Business
and Professions Code, and the total number of these cases resulting
in suspension or revocation of a license.
(e) The report from the division prepared by the Bureau of
Investigations for submission to the director pursuant to Section
6315.3.
(f) Recommendations for legislation which improves the ability of
the division to provide safety in places of employment.
The report shall be made to the Speaker of the Assembly and the
Chairman of the Rules Committee of the Senate, for assignment to the
appropriate committee or committees for evaluation.
6331. The division shall enter into a contract for the development
and execution of tests to define safety standards for the use of
positive pressure, closed circuit, breathing apparatus in interior
structural fires. The testing shall define numerically what
constitutes positive pressure in breathing apparatus. The testing
shall also address the issues of the heat of the oxygen coming into
the mask, the condensation inside the mask, the possibility of, and
effect of, moisture condensation in the lungs of the wearer of the
mask, and the risks associated with a dislodgement of the mask in an
interior structural fire situation. The development of these tests
shall utilize the resources of recognized specialists in fire
research to design, conduct, and execute the tests and develop the
standards. The standards board shall adopt or revise safety standards
based on the results of these tests.
The test parameters, the location where the testing will take
place, and the level of expertise required shall be determined by the
Cal-OSHA Self Contained Breathing Apparatus Advisory Committee.
6332. (a) For purposes of this section, the following terms have
the following meanings:
(1) "Community health care worker" means an individual who
provides health care or health care-related services to clients in
home settings.
(2) "Employer" means a person or entity that employs a community
health care worker. "Employer" does not include an individual who is
a recipient of home-based services and who is responsible for hiring
his or her own community health care worker.
(3) "Violence" means a physical assault or a threat of a physical
assault.
(b) Every employer shall keep a record of any violence committed
against a community health care worker and shall file a copy of that
record with the Division of Labor Statistics and Research in the form
and detail and within the time limits prescribed by the Division of
Labor Statistics and Research.
6300. The California Occupational Safety and Health Act of 1973 is
hereby enacted for the purpose of assuring safe and healthful working
conditions for all California working men and women by authorizing
the enforcement of effective standards, assisting and encouraging
employers to maintain safe and healthful working conditions, and by
providing for research, information, education, training, and
enforcement in the field of occupational safety and health.
6301. The definitions set forth in this chapter shall govern the
construction and interpretation of this part.
6302. As used in this division:
(a) "Director" means the Director of Industrial Relations.
(b) "Department" means the Department of Industrial Relations.
(c) "Insurer" includes the State Compensation Insurance Fund and
any private company, corporation, mutual association, and reciprocal
or interinsurance exchange, authorized under the laws of this state
to insure employers against liability for compensation under this
part and under Division 4 (commencing with Section 3201), and any
employer to whom a certificate of consent to self-insure has been
issued.
(d) "Division" means the Division of Occupational Safety and
Health.
(e) "Standards board" means the Occupational Safety and Health
Standards Board, within the department.
(f) "Appeals board" means the Occupational Safety and Health
Appeals Board, within the department.
(g) "Aquaculture" means a form of agriculture as defined in
Section 17 of the Fish and Game Code.
(h) "Serious injury or illness" means any injury or illness
occurring in a place of employment or in connection with any
employment which requires inpatient hospitalization for a period in
excess of 24 hours for other than medical observation or in which an
employee suffers a loss of any member of the body or suffers any
serious degree of permanent disfigurement, but does not include any
injury or illness or death caused by the commission of a Penal Code
violation, except the violation of Section 385 of the Penal Code, or
an accident on a public street or highway.
(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 substantial probability that
death or serious physical harm in the future could result from the
exposure.
6303. (a) "Place of employment" means any place, and the premises
appurtenant thereto, where employment is carried on, except a place
where the health and safety jurisdiction is vested by law in, and
actively exercised by, any state or federal agency other than the
division.
(b) "Employment" includes the carrying on of any trade,
enterprise, project, industry, business, occupation, or work,
including all excavation, demolition, and construction work, or any
process or operation in any way related thereto, in which any person
is engaged or permitted to work for hire, except household domestic
service.
(c) "Employment," for purposes of this division only, also
includes volunteer firefighting when covered by Division 4
(commencing with Section 3200) pursuant to Section 3361.
(d) Subdivision (c) shall become operative on January 1, 2004.
6303.5. Nothing in this division shall be construed to limit the
jurisdiction of the state over any employmment or place of employment
by reason of the exercise of occupational safety and health
jurisdiction by any federal agency if federal jurisdiction is being
exercised under a federal law which expressly authorizes concurrent
state jurisdiction over occupational safety or health issues.
6304. "Employer" shall have the same meaning as in Section 3300.
6304.1. (a) "Employee" means every person who is required or
directed by any employer to engage in any employment or to go to work
or be at any time in any place of employment.
(b) "Employee" also includes volunteer firefighters covered by
Division 4 (commencing with Section 3200) pursuant to Section 3361.
(c) Subdivision (b) shall become operative on January 1, 2004.
(d) This act does not affect claims that arose pursuant to
Division 5 of this code between January 1, 2002, and the effective
date of this act.
6304.2. Notwithstanding Section 6413, and except as provided in
Sections 6304. 3 and 6304.4, any state prisoner engaged in
correctional industry, as defined by the Department of Corrections,
shall be deemed to be an "employee," and the Department of
Corrections shall be deemed to be an "employer," with regard to such
prisoners for the purposes of this part.
6304.3. (a) A Correctional Industry Safety Committee shall be
established in accordance with Department of Corrections
administrative procedures at each facility maintaining a correctional
industry, as defined by the Department of Corrections. The Division
of Occupational Safety and Health shall promulgate, and the
Department of Corrections shall implement, regulations concerning the
duties and functions which shall govern the operation of each such
committee.
(b) All complaints alleging unsafe or unhealthy working conditions
in a correctional industry shall initially be directed to the
Correctional Industry Safety Committee of the facility prison. The
committee shall attempt to resolve all complaints.
If a complaint is not resolved by the committee within 15 calendar
days, the complaint shall be referred by the committee to the
division where it shall be reviewed. When the division receives a
complaint which, in its determination, constitutes a bona fide
allegation of a safety or health violation, the division shall
summarily investigate the same as soon as possible, but not later
than three working days after receipt of a complaint charging a
serious violation, as defined in Section 6309, and not later than 14
calendar days after receipt of a complaint charging a nonserious
violation.
(c) Except as provided in subdivision (b) and in Section 6313, the
inspection or investigation of a facility maintaining a correctional
industry, as defined by the Department of Corrections, shall be
discretionary with the division.
(d) Notwithstanding Section 6321, the division may give advance
notice of an inspection or investigation and may postpone the same if
such action is necessary for the maintenance of security at the
facility where the inspection or investigation is to be held, or for
insuring the safety and health of the division's representative who
will be conducting such inspection or investigation.
6304.4. A prisoner engaged in correctional industry, as defined by
the Department of Corrections, shall not be considered an employee
for purposes of the provisions relating to appeal proceedings set
forth in Chapter 7 (commencing with Section 6600).
6304.5. It is the intent of the Legislature that the provisions of
this division, and the occupational safety and health standards and
orders promulgated under this code, are applicable to proceedings
against employers for the exclusive purpose of maintaining and
enforcing employee safety.
Neither the issuance of, or failure to issue, a citation by the
division shall have any application to, nor be considered in, nor be
admissible into, evidence in any personal injury or wrongful death
action, except as between an employee and his or her own employer.
Sections 452 and 669 of the Evidence Code shall apply to this
division and to occupational safety and health standards adopted
under this division in the same manner as any other statute,
ordinance, or regulation. The testimony of employees of the division
shall not be admissible as expert opinion or with respect to the
application of occupational safety and health standards. It is the
intent of the Legislature that the amendments to this section enacted
in the 1999-2000 Regular Session shall not abrogate the holding in
Brock v. State of California (1978) 8l Cal.App.3d 752.
6305. (a) "Occupational safety and health standards and orders"
means standards and orders adopted by the standards board pursuant to
Chapter 6 (commencing with Section 140) of Division 1 and general
orders heretofore adopted by the Industrial Safety Board or the
Industrial Accident Commission.
(b) "Special order" means any order written by the chief or the
chief's authorized representative to correct an unsafe condition,
device, or place of employment which poses a threat to the health or
safety of an employee and which cannot be made safe under existing
standards or orders of the standards board. These orders shall have
the same effect as any other standard or order of the standards
board, but shall apply only to the employment or place of employment
described in the written order of the chief's authorized
representative.
6306. (a) "Safe," "safety," and "health" as applied to an
employment or a place of employment mean such freedom from danger to
the life, safety, or health of employees as the nature of the
employment reasonably permits.
(b) "Safety device" and "safeguard" shall be given a broad
interpretation so as to include any practicable method of mitigating
or preventing a specific danger, including the danger of exposure to
potentially injurious levels of ionizing radiation or potentially
injurious quantities of radioactive materials.
6307. The division has the power, jurisdiction, and supervision
over every employment and place of employment in this state, which is
necessary adequately to enforce and administer all laws and lawful
standards and orders, or special orders requiring such employment and
place of employment to be safe, and requiring the protection of the
life, safety, and health of every employee in such employment or
place of employment.
6307.1. The State Department of Health Services shall assist the
division in the enforcement of Section 25910 of the Health and Safety
Code in the manner prescribed by a written agreement between the
State Department of Health Services and the Department of Industrial
Relations, pursuant to Section 144.
6308. The division, in enforcing occupational safety and health
standards and orders and special orders may do any of the following:
(a) Declare and prescribe what safety devices, safeguards, or
other means or methods of protection are well adapted to render the
employees of every employment and place of employment safe as
required by law or lawful order.
(b) Enforce Section 25910 of the Health and Safety Code and
standards and orders adopted by the standards board pursuant to
Chapter 6 (commencing with Section 140) of Division 1 of the Labor
Code, for the installation, use, maintenance, and operation of
reasonable uniform safety devices, safeguards, and other means or
methods of protection, which are necessary to carry out all laws and
lawful standards or special orders relative to the protection of the
life and safety of employees in employments and places of employment.
(c) Require the performance of any other act which the protection
of the life and safety of the employees in employments and places of
employment reasonably demands.
An employer may request a hearing on a special order or action
ordered pursuant to this section, at which the employer, owner, or
any other person may appear. The appeals board shall conduct the
hearing at the earliest possible time.
All orders, rules, regulations, findings, and decisions of the
division made or entered under this part, except special orders and
action orders, may be reviewed by the Supreme Court and the courts of
appeal as may be provided by law.
6308.5. Hearings conducted by the division pursuant to this part
shall give any affected employer or other affected person the
opportunity to submit facts or arguments, but may be conducted
informally, either orally or in writing.
6309. If the division learns or has reason to believe that an
employment or place of employment is not safe or is injurious to the
welfare of an employee, it may, on its own motion, or upon complaint,
summarily investigate the same with or without notice or hearings.
However, if the division receives a complaint from an employee, an
employee's representative, including, but not limited to, an
attorney, health or safety professional, union representative, or
government agency representative, or an employer of an employee
directly involved in an unsafe place of employment, that his or her
employment or place of employment is not safe, it shall, with or
without notice or hearing, summarily investigate the complaint as
soon as possible, but not later than three working days after receipt
of a complaint charging a serious violation, and not later than 14
calendar days after receipt of a complaint charging a nonserious
violation. The division shall attempt to determine the period of time
in the future that the complainant believes the unsafe condition may
continue to exist, and shall allocate inspection resources so as to
respond first to those situations in which time is of the essence.
For purposes of this section, a complaint is deemed to allege a
serious violation if the division determines that the complaint
charges that there is a substantial probability that death or serious
physical harm could result from a condition which exists, or from
one or more practices, means, methods, operations, or processes which
have been adopted or are in use in a place of employment. When a
complaint charging a serious violation is received from a state or
local prosecutor, or a local law enforcement agency, the division
shall summarily investigate the employment or place of employment
within 24 hours of receipt of the complaint. All other complaints are
deemed to allege nonserious violations. The division may enter and
serve any necessary order relative thereto. The division is not
required to respond to a complaint within this period where, from the
facts stated in the complaint, it determines that the complaint is
intended to willfully harass an employer or is without any reasonable
basis.
The division shall keep complete and accurate records of all
complaints, whether verbal or written, and shall inform the
complainant, whenever his or her identity is known, of any action
taken by the division in regard to the subject matter of the
complaint, and the reasons for the action, within 14 calendar days of
taking any action. The records of the division shall include the
dates on which any action was taken on the complaint, or the reasons
for not taking any action on the complaint. The division shall,
pursuant to authorized regulations, conduct an informal review of any
refusal by a representative of the division to issue a citation with
respect to an alleged violation. The division shall furnish the
employee or the representative of employees requesting the review a
written statement of the reasons for the division's final disposition
of the case.
The name of a person who submits to the division a complaint
regarding the unsafe condition of an employment or place of
employment shall be kept confidential by the division, unless that
person requests otherwise.
The division shall annually compile and release on its Web site
data pertaining to complaints received and citations issued.
The requirements of this section do not relieve the division of
its requirement to inspect and assure that all places of employment
are safe and healthful for employees. The division shall maintain the
capability to receive and act upon complaints at all times.
6310. (a) No person shall discharge or in any manner discriminate
against any employee because the employee has done any of the
following:
(1) Made any oral or written complaint to the division, other
governmental agencies having statutory responsibility for or
assisting the division with reference to employee safety or health,
his or her employer, or his or her representative.
(2) Instituted or caused to be instituted any proceeding under or
relating to his or her rights or has testified or is about to testify
in the proceeding or because of the exercise by the employee on
behalf of himself, herself, or others of any rights afforded him or
her.
(3) Participated in an occupational health and safety committee
established pursuant to Section 6401.7.
(b) Any employee who is discharged, threatened with discharge,
demoted, suspended, or in any other manner discriminated against in
the terms and conditions of employment by his or her employer because
the employee has made a bona fide oral or written complaint to the
division, other governmental agencies having statutory responsibility
for or assisting the division with reference to employee safety or
health, his or her employer, or his or her representative, of unsafe
working conditions, or work practices, in his or her employment or
place of employment, or has participated in an employer-employee
occupational health and safety committee, shall be entitled to
reinstatement and reimbursement for lost wages and work benefits
caused by the acts of the employer. Any employer who willfully
refuses to rehire, promote, or otherwise restore an employee or
former employee who has been determined to be eligible for rehiring
or promotion by a grievance procedure, arbitration, or hearing
authorized by law, is guilty of a misdemeanor.
6311. No employee shall be laid off or discharged for refusing to
perform work in the performance of which this code, including Section
6400, any occupational safety or health standard or any safety order
of the division or standards board will be violated, where the
violation would create a real and apparent hazard to the employee or
his or her fellow employees. Any employee who is laid off or
discharged in violation of this section or is otherwise not paid
because he or she refused to perform work in the performance of which
this code, any occupational safety or health standard or any safety
order of the division or standards board will be violated and where
the violation would create a real and apparent hazard to the employee
or his or her fellow employees shall have a right of action for
wages for the time the employee is without work as a result of the
layoff or discharge.
6312. Any employee who believes that he or she has been discharged
or otherwise discriminated against by any person in violation of
Section 6310 or 6311 may file a complaint with the Labor Commissioner
pursuant to Section 98.7.
6313. (a) The division shall investigate the causes of any
employment accident that is fatal to one or more employees or that
results in a serious injury or illness, or a serious exposure, unless
it determines that an investigation is unnecessary. If the division
determines that an investigation of an accident is unnecessary, it
shall summarize the facts indicating that the accident need not be
investigated and the means by which the facts were determined. The
division shall establish guidelines for determining the circumstances
under which an investigation of these accidents and exposures is
unnecessary.
(b) The division may investigate the causes of any other
industrial accident or occupational illness which occurs within the
state in any employment or place of employment, or which directly or
indirectly arises from or is connected with the maintenance or
operation of the employment or place of employment, and shall issue
any orders necessary to eliminate the causes and to prevent
reoccurrence. The orders may not be admitted as evidence in any
action for damages, or any proceeding to recover compensation, based
on or arising out of injury or death caused by the accident or
illness.
6313.5. The division shall transmit to the Registrar of Contractors
copies of any reports made in any investigation conducted pursuant
to subdivision (a) of Section 6313, and may, upon its own motion or
at the request of the Registrar of Contractors, transmit copies of
any other reports made in any investigation conducted pursuant to
subdivision (b) of Section 6313 involving a contractor licensed
pursuant to the Contractors License Law (Chapter 9 (commencing with
Section 7000) of Divison 3 of the Business and Professions Code).
6314. (a) To make an investigation or inspection, the chief of the
division and all qualified divisional inspectors and investigators
authorized by him or her shall, upon presenting appropriate
credentials to the employer, have free access to any place of
employment to investigate and inspect during regular working hours,
and at other reasonable times when necessary for the protection of
safety and health, and within reasonable limits and in a reasonable
manner. The chief or his or her authorized representative may, during
the course of any investigation or inspection, obtain any
statistics, information, or any physical materials in the possession
of the employer that are directly related to the purpose of the
investigation or inspection, conduct any tests necessary to the
investigation or inspection, and take photographs. Photographs taken
by the division during the course of any investigation or inspection
shall be considered to be confidential information pursuant to the
provisions of Section 6322, and shall not be deemed to be public
records for purposes of the California Public Records Act.
(b) If permission to investigate or inspect the place of
employment is refused, or the facts or circumstances reasonably
justify the failure to seek permission, the chief or his or her
authorized representative may obtain an inspection warrant pursuant
to the provisions of Title 13 (commencing with Section 1822.50) of
the Code of Civil Procedure. Cause for the issuance of a warrant
shall be deemed to exist if there has been an industrial accident,
injury, or illness reported, if any complaint that violations of
occupational safety and health standards exist at the place of
employment has been received by the division, or if the place of
employment to be inspected has been chosen on the basis of specific
neutral criteria contained in a general administrative plan for the
enforcement of this division.
(c) The chief and his or her authorized representatives may issue
subpoenas to compel the attendance of witnesses and the production of
books, papers, records, and physical materials, administer oaths,
examine witnesses under oath, take verification or proof of written
materials, and take depositions and affidavits for the purpose of
carrying out the duties of the division.
(d) In the course of any investigation or inspection of an
employer or place of employment by an authorized representative of
the division, a representative of the employer and a representative
authorized by his or her employees shall have an opportunity to
accompany him or her on the tour of inspection. Any employee or
employer, or their authorized representatives, shall have the right
to discuss safety and health violations or safety and health problems
with the inspector privately during the course of an investigation
or inspection. Where there is no authorized employee representative,
the chief or his or her authorized representatives shall consult with
a reasonable number of employees concerning matters of health and
safety of the place of employment.
(e) During any investigation of an industrial accident or
occupational illness conducted by the division pursuant to the
provisions of Section 6313, the chief or his or her authorized
representative may issue an order to preserve physical materials or
the accident site as they were at the time the accident or illness
occurred if, in the opinion of the division, it is necessary to do so
in order to determine the cause or causes of the accident or
illness, and the evidence is in potential danger of being removed,
altered, or tampered with. Under these circumstances, the division
shall issue that order in a manner that will avoid, to the extent
possible, any interference with normal business operations.
A conspicuous notice that an order has been issued shall be
prepared by the division and shall be posted by the employer in the
area or on the article to be preserved. The order shall be limited to
the immediate area and the machines, devices, apparatus, or
equipment directly associated with the accident or illness.
Any person who knowingly violates an order issued by the division
pursuant to this subdivision shall, upon conviction, be punished by a
fine of not more than five thousand dollars ($5,000).
6314.1. (a) The division shall establish a program for targeting
employers in high hazardous industries with the highest incidence of
preventable occupational injuries and illnesses and workers'
compensation losses. The employers shall be identified from any or
all of the following data sources: the California Work Injury and
Illness program, the Occupational Injuries and Illness Survey, the
federal hazardous employers' list, experience modification and other
relevant data maintained and furnished by all rating organizations as
defined in Section 11750.1 of the Insurance Code, histories of
violations of Occupational Safety and Health Act standards, and any
other source deemed to be appropriate that identifies injury and
illness rates.
(b) The division shall establish procedures for ensuring that the
highest hazardous employers in the most hazardous industries are
inspected on a priority basis. The division may send a letter to the
high hazard employers who are identified pursuant to this section
informing them of their status and directing them to submit a plan,
including the establishment of joint labor-management health and
safety committees, within a time determined by the division for
reducing their occupational injury and illness rates. Employers who
submit plans that meet the requirements of the division may be placed
on a secondary inspection schedule. Employers on that schedule shall
be inspected on a random basis as determined by the division.
Employers who do not submit plans meeting the requirements of the
division within the time specified by the division shall be placed on
the primary inspection list. Every employer on the primary
inspection list shall be subject to an inspection. The division shall
employ sufficient personnel to meet minimum federal targeted
inspection standards.
(c) The division shall establish and maintain regional plans for
allocating the division's resources for the targeted inspection
program in addition to the inspections required or authorized in
Sections 6309, 6313, and 6320. Each regional plan shall focus on
industries selected from the targeted inspection program as well as
any other scheduled inspections that the division determines to be
appropriate to the region, including the cleanup of hazardous waste
sites. All targeted inspections shall be conducted on a priority
basis, targeting the worst employers first.
(d) In order to maximize the impact of the regional plans, the
division shall coordinate its education, training, and consulting
services with the priorities established in the regional plans.
6314.5. (a) Every inspection conducted by the division shall
include an evaluation of the employer's injury prevention program
established pursuant to Section 6401.7. The division shall evaluate
injury prevention programs using the criteria for substantial
compliance determined by the standards board. The evaluation shall
include interviews with a sample of employees and the members of any
employer-employee occupational safety and health committee. In any
inspection which includes work for which a permit is required
pursuant to Section 6500 and for which a permit has been issued
pursuant to Section 6502, the evaluation of the employer's injury
prevention program shall be limited to the implementation of the plan
approved by the division in the issuance of the permit. Before any
inspection is concluded, the division shall notify the employer of
the services available from the department to assist the employer to
establish, maintain, improve, and evaluate the employer's injury
prevention program.
(b) Inspections also shall include an evaluation of the following:
(1) The condition or conditions alleged in the complaint if the
inspection is conducted pursuant to Section 6309.
(2) The condition or conditions involved in the accident if the
inspection is conducted pursuant to Section 6313.
(3) The condition or conditions involving work for which a permit
is required pursuant to Section 6500, for which notification of
asbestos related work is required pursuant to Section 6501.5, or for
which a report of use of a carcinogen is required pursuant to Section
9030.
(4) The condition or conditions related to significant safety or
health hazards in the industries identified in the regional plans
developed pursuant to Section 6314.1.
(5) The condition or conditions involved in abatement of previous
violations, special orders, or action orders if the inspection is
conducted pursuant to Section 6320.
(c) The scope of any inspection may be expanded beyond the
evaluations specified in subdivisions (a) and (b) whenever, in the
opinion of the division, a more complete inspection is warranted.
6315. (a) There is within the division a Bureau of Investigations.
The bureau is responsible for directing accident investigations
involving violations of standards, orders, special orders, or Section
25910 of the Health and Safety Code, in which there is a serious
injury to five or more employees, death, or request for prosecution
by a division representative. The bureau shall review inspection
reports involving a serious violation where there have been serious
injuries to one to four employees or a serious exposure, and may
investigate those cases in which the bureau finds criminal violations
may have occurred. The bureau is responsible for preparing cases for
the purpose of prosecution, including evidence and findings.
(b) The division shall provide the bureau with all of the
following:
(1) All initial accident reports.
(2) The division's inspection report for any inspection involving
a serious violation where there is a fatality, and the reports
necessary for the bureau's review required pursuant to subdivision
(a).
(3) Any other documents in the possession of the division
requested by the bureau for its review or investigation of any case
or which the division determines will be helpful to the bureau in its
investigation of the case.
(c) The supervisor of the bureau is the administrative chief of
the bureau, and shall be an attorney.
(d) The bureau shall be staffed by as many attorneys and
investigators as are necessary to carry out the purposes of this
chapter. To the extent possible, the attorneys and investigators
shall be experienced in criminal law.
(e) The supervisor of the bureau and bureau representatives
designated by the supervisor have a right of access to all places of
employment necessary to the investigation, may collect any evidence
or samples they deem necessary to an investigation, and have all of
the powers enumerated in Section 6314.
(f) The supervisor of the bureau and bureau representatives
designated by the supervisor may serve all processes and notices
throughout the state.
(g) In any case where the bureau is required to conduct an
investigation, and in which there is a serious injury or death, the
results of the investigation shall be referred in a timely manner by
the bureau to the appropriate prosecuting authority having
jurisdiction for appropriate action, unless the bureau determines
that there is legally insufficient evidence of a violation of the
law. If the bureau determines that there is legally insufficient
evidence of a violation of the law, the bureau shall notify the
appropriate prosecuting authority, if the prosecuting authority
requests notice.
(h) The bureau may communicate with the appropriate prosecuting
authority at any time the bureau deems appropriate.
(i) Upon the request of a county district attorney, the department
may develop a protocol for the referral of cases that may involve
criminal conduct to the appropriate prosecuting authority in lieu of
or in cooperation with an investigation by the bureau. The protocol
shall provide for the voluntary acceptance of referrals after a
review of the case by the prosecuting authority. In cases accepted
for investigation by the prosecuting authority, the protocol shall
provide for cooperation between the prosecuting authority, the
division, and the bureau. Where a referral is declined by the
prosecuting authority, the bureau shall comply with subdivisions (a)
to (h), inclusive.
6315.3. The bureau shall, not later than February 15, annually
submit to the division for submission to the director a report on the
activities of the bureau, including, but not limited to, the
following:
(a) Totals of each type of report provided the bureau under each
category in subdivision (b) of Section 6315.
(b) Totals of each type of case reflecting the number of
investigations and court cases in progress at the start of the
calendar year being reported, investigations completed in the
calendar year, cases referred to appropriate prosecuting authorities
in the calendar year, and investigations and court cases in progress
at the end of the calendar year. The types of cases shall include the
following:
(1) Those that the bureau is required to investigate, divided into
fatalities, serious injuries to five or more employees, and requests
for prosecution from a division representative.
(2) Those that were initiated by the bureau following the review
required in subdivision (a) of Section 6315, divided into serious
injuries to fewer than five employees and serious exposures.
(c) A summary of the dispositions in the calendar year of cases
referred by the bureau to appropriate prosecuting authorities. The
summary shall be divided into the types of cases, as described in
subdivision (b), and shall show at least the violation, the statute
for which the case was referred for prosecution, and the dates of
referral to the bureau for investigation, referral from the bureau
for prosecution, and the final court action if the case was
prosecuted.
(d) A summary of investigations completed in the calendar year
that did not result in a referral for prosecution, divided into the
types of cases as described in subdivision (b), showing the violation
and the reasons for nonreferral.
(e) A summary of the use of the bureau's resources in
accomplishing the bureau's mission.
6315.5. All occupational safety and health standards and orders,
rules, regulations, findings, and decisions of the division made and
entered pursuant to this part are admissible as evidence in any
prosecution for the violation of any provision of this part, and
shall, in every such prosecution, be presumed to be reasonable and
lawful and to fix a reasonable and proper standard and requirement of
safety unless, prior to the institution of the prosecution for such
violation, proceedings for a hearing on a special order are
instituted, or a petition is filed under Section 11426 of the
Government Code.
6316. Except as limited by Chapter 6 (commencing with Section 140)
of Division 1, nothing in this part shall deprive the governing body
of any county, city, or public corporation, board, or department, of
any power or jurisdiction over or relative to any place of
employment.
6317. If, upon inspection or investigation, the division believes
that an employer has violated Section 25910 of the Health and Safety
Code or any standard, rule, order, or regulation established pursuant
to Chapter 6 (commencing with Section 140) of Division 1 of the
Labor Code, or any standard, rule, order, or regulation established
pursuant to this part, it shall with reasonable promptness issue a
citation to the employer. Each citation shall be in writing and shall
describe with particularity the nature of the violation, including a
reference to the provision of the code, standard, rule, regulation,
or order alleged to have been violated. In addition, the citation
shall fix a reasonable time for the abatement of the alleged
violation. The period specified for abatement shall not commence
running until the date the citation or notice is received by
certified mail and the certified mail receipt is signed, or if not
signed, the date the return is made to the post office. If the
division officially and directly delivers the citation or notice to
the employer, the period specified for abatement shall commence
running on the date of the delivery.
A "notice" in lieu of citation may be issued with respect to
violations found in an inspection or investigation which meet either
of the following requirements:
(1) The violations do not have a direct relationship upon the
health or safety of an employee.
(2) The violations do not have an immediate relationship to the
health or safety of an employee, and are of a general or regulatory
nature. A notice in lieu of a citation may be issued only if the
employer agrees to correct the violations within a reasonable time,
as specified by the division, and agrees not to appeal the finding of
the division that the violations exist. A notice issued pursuant to
this paragraph shall have the same effect as a citation for purposes
of establishing repeat violations or a failure to abate. Every notice
shall clearly state the abatement period specified by the division,
that the notice may not be appealed, and that the notice has the same
effect as a citation for purposes of establishing a repeated
violation or a failure to abate. The employer shall indicate
agreement to the provisions and conditions of the notice by his or
her signature on the notice.
Under no circumstances shall a notice be issued in lieu of a
citation if the violations are serious, repeated, willful, or arise
from a failure to abate.
The director shall prescribe guidelines for the issuance of these
notices.
The division may impose a civil penalty against an employer as
specified in Chapter 4 (commencing with Section 6423) of this part. A
notice in lieu of a citation may not be issued if the number of
first instance violations found in the inspection (other than
serious, willful, or repeated violations) is 10 or more violations.
No citation or notice shall be issued by the division for a given
violation or violations after six months have elapsed since
occurrence of the violation.
The director shall prescribe procedures for the issuance of a
citation or notice.
The division shall prepare and maintain records capable of
supplying an inspector with previous citations and notices issued to
an employer.
6317.5. (a) If, upon inspection or investigation, the division
finds that an employer has falsified any materials posted in the
workplace or distributed to employees related to the California
Occupational Safety and Health Act, the division shall issue a
citation to the employer.
(b) Each citation issued pursuant to this section, or a copy or
copies thereof, shall be prominently posted, as prescribed in
regulations issued by the director.
(c) Any employer served with a citation pursuant to subdivision
(a) may appeal to the appeals board pursuant to the provisions of
Chapter 7 (commencing with Section 6600). The appeal shall be subject
to the timeframes and procedures set forth in that chapter.
(d) The provisions of this section are in addition to, and not in
lieu of, all other criminal penalties and civil remedies that may be
applicable to any act leading to issuance of a citation pursuant to
this section.
6317.7. If, upon inspection or investigation, the division finds no
violations pursuant to this chapter, the division with reasonable
promptness shall issue a written notice to the employer specifying
the areas inspected and stating that no violations were found.
The director shall prescribe procedures for the issuance of this
notice.
6318. (a) Each citation issued under Section 6317, and each special
order or action ordered pursuant to Section 6308, or a copy or
copies thereof, shall be prominently posted, as prescribed in
regulations issued by the director, at or near each place a violation
referred to in the citation or order occurred. All postings shall be
maintained for three working days, or until the unsafe condition is
abated, whichever is longer. Following each investigation of an
industrial accident or occupational illness, if no violations are
found, the employer shall post a notice prepared by the division so
indicating for three working days.
(b) When the division verifies abatement of a serious violation or
an order at the time of inspection or upon reinspection, the
employer shall post a notice prepared by the division so indicating
for three working days. In all other cases of abatement of serious
violations, the employer shall post the signed statement confirming
abatement prepared pursuant to Section 6320.
6319. (a) If, after an inspection or investigation, the division
issues a citation pursuant to Section 6317 or an order pursuant to
Section 6308, it shall, within a reasonable time after the
termination of the inspection or investigation, notify the employer
by certified mail of the citation or order, and that the employer has
15 working days from receipt of the notice within which to notify
the appeals board that he or she wishes to contest the citation or
order for any reason set forth in Section 6600 or 6600.5.
(b) Any employer served by certified mail with a notice of civil
penalty may appeal to the appeals board within 15 working days from
receipt of that notice for any reason set forth in Section 6600. If
the citation is issued for a violation involving the condition or
operation of any machine, device, apparatus, or equipment, and a
person other than the employer is obligated to the employer to repair
the machine, device, apparatus, or equipment and to pay any
penalties assessed against the employer, the other person may appeal
to the appeals board within 15 working days of the receipt of the
citation by the employer for any reasons set forth in Section 6600.
(c) The director shall promulgate regulations covering the
assessment of civil penalties under this chapter which give due
consideration to the appropriateness of the penalty with respect to
the following factors:
(1) The size of the business of the employer being charged.
(2) The gravity of the violation.
(3) The good faith of the employer, including timely abatement.
(4) The history of previous violations.
(d) Notwithstanding subdivision (c), if serious injury, illness,
exposure, or death is caused by any serious, willful, or repeated
violation, or by any failure to correct a serious violation within
the time permitted for its correction, the penalty shall not be
reduced for any reason other than the size of the business of the
employer being charged. Whenever the division issues a citation for a
violation covered by this subdivision, it shall notify the employer
of its determination that serious injury, illness, exposure or death
was caused by the violation and shall, upon request, provide the
employer with a copy of the inspection report.
(e) The employer shall not be liable for a civil penalty under
this part for any citation issued by a division representative
providing consulting services pursuant to Sections 6354 and 6355.
(f) Whenever a citation of a self-insured employer for a willful,
or repeat serious violation of the standard adopted pursuant to
Section 6401.7 becomes final, the division shall notify the director
so that a hearing may be held to determine whether good cause exists
to revoke the employer's certificate of consent to self-insure as
provided in Section 3702.
(g) Based upon the evidence, the division may propose appropriate
modifications concerning the characterization of violations and
corresponding modifications to civil penalties as a result thereof.
6319.3. (a) Except as provided in subdivision (b) of this section
and subdivision (j) of Section 6401.7, no civil penalty shall be
assessed against any new employer in the state for a violation of any
standard developed pursuant to subdivision (a) of Section 6401.7 for
a period of one year after the date the new employer establishes a
business in the state.
(b) Subdivision (a) shall only apply to an employer who has made a
good faith effort to comply with any standard developed pursuant to
subdivision (a) of Section 6401.7, but shall not apply if the
employer is found to have committed a serious, willful, or repeated
violation of that standard, or fails to abate the violation and is
assessed a penalty pursuant to Section 6430.
6319.5. Upon a showing by an employer of a good-faith effort to
comply with the abatement requirement of a citation, and that
abatement has not been completed because of factors beyond his
reasonable control, the division, after an opportunity for a hearing,
shall issue an order affirming or modifying the abatement
requirements in such citation.
6320. (a) If, after inspection or investigation, the division
issues a special order, order to take special action, or a citation
for a serious violation, and if at the time of inspection the order
is not complied with or the violation is not abated, the division
shall conduct a reinspection in the following cases:
(1) All inspections or investigations involving a serious
violation of a standard adopted pursuant to Section 6401.7, a special
order or order to take special action, serious violations of those
orders, and serious violations characterized as repeat or willful or
with abatement periods of less than six days. These reinspections
shall be conducted at the end of the period fixed for compliance with
the order or abatement of the violation or within 30 days
thereafter.
(2) At least 20 percent of the inspections or investigations
involving a serious violation not otherwise scheduled for
reinspection. These inspections shall be randomly selected and shall
be conducted at the end of the period fixed for abatement of the
violation or within a reasonable time thereafter.
(b) Whenever a serious violation is not abated at the time of the
initial or subsequent inspection, the division shall require the
employer to submit a signed statement under penalty of perjury that
he or she has complied with the abatement terms within the period
fixed for abatement of the violation. If the statement is not
received by the division within 10 working days after the end of the
period fixed for abatement, the division shall revoke any adjustments
to the civil penalty based on abatement of the violation. The
division shall include on the initial notice of civil penalty a clear
warning of reinspection and automatic revocation of any civil
penalty adjustments based on abatement for failure to submit the
required statement in the time allotted, and of an additional,
potentially substantial monetary penalty for failure to abate the
violation. If the division fails to receive evidence of abatement or
the statement within 10 working days after the end of the abatement
period, the division shall notify the employer that the additional
civil penalty for failure to abate, as provided in Section 6430, will
be assessed retroactive to the end of the abatement period unless
the employer can provide sufficient evidence that the violation was
abated prior to that date. The division shall conduct a reinspection
of serious violations within 45 days following the end of the
abatement period whenever it still has no evidence of abatement.
6321. No person or employer shall be given advance warning of an
inspection or investigation by any authorized representative of the
division unless authorized under provisions of this part.
Only the chief or, in the case of his absence, his authorized
representatives shall have the authority to permit advance notice of
an inspection or investigation. The director shall, as soon as
practicable, set down limitations under which an employer may be
granted advance notice by the chief. In no case, except an imminent
danger to the health or safety of an employee or employees, is
advance notice to be authorized when the investigation or inspection
is to be made as a result of an employee complaint.
Any person who gives advance notice of any inspection to be
conducted, without authority from the chief or his designees, is
guilty of a misdemeanor and shall, upon conviction, be punished by a
fine of not more than one thousand dollars ($1,000) or by
imprisonment for not more than six months, or by both.
6322. All information reported to or otherwise obtained by the
chief or his representatives in connection with any inspection or
proceeding of the division which contains or which might reveal a
trade secret referred to in Section 1905 of Title 18 of the United
States Code, or other information that is confidential pursuant to
Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code, shall be considered confidential, except that
such information may be disclosed to other officers or employees of
the division concerned with carrying out the purposes of the division
or when relevant in any proceeding of the division. The appeals
board, standards board, the courts, or the director shall in any such
proceeding issue such orders as may be appropriate to protect the
confidentiality of trade secrets. Violation of this section is a
misdemeanor.
6323. If the condition of any employment or place of employment or
the operation of any machine, device, apparatus, or equipment
constitutes a serious menace to the lives or safety of persons about
it, the division may apply to the superior court of the county in
which such place of employment, machine, device, apparatus, or
equipment is situated, for an injunction restraining the use or
operation thereof until such condition is corrected.
6324. The application to the superior court accompanied by
affidavit showing that such place of employment, machine, device,
apparatus, or equipment is being operated in violation of a safety
order or standard, or in violation of Section 25910 of the Health and
Safety Code, and that such use or operation constitutes a menace to
the life or safety of any person employed thereabout and accompanied
by a copy of the order or standard applicable thereto is a sufficient
prima facie showing to warrant, in the discretion of the court, the
immediate granting of a temporary restraining order. No bond shall be
required from the division as a prerequisite to the granting of any
restraining order.
6325. When, in the opinion of the division, a place of employment,
machine, device, apparatus, or equipment or any part thereof is in a
dangerous condition, is not properly guarded or is dangerously placed
so as to constitute an imminent hazard to employees, entry therein,
or the use thereof, as the case may be, shall be prohibited by the
division, and a conspicuous notice to that effect shall be attached
thereto. Such prohibition of use shall be limited to the immediate
area in which the imminent hazard exists, and the division shall not
prohibit any entry in or use of a place of employment, machine,
device, apparatus, or equipment, or any part thereof, which is
outside such area of imminent hazard. Such notice shall not be
removed except by an authorized representative of the division, nor
until the place of employment, machine, device, apparatus, or
equipment is made safe and the required safeguards or safety
appliances or devices are provided. This section shall not prevent
the entry or use with the division's knowledge and permission for the
sole purpose of eliminating the dangerous conditions.
6325.5. If the division has reasonable cause to believe that any
workplace contains friable asbestos, and if there appears to be
inadequate protection for employees at that workplace to the hazards
from airborne asbestos fibers, the division may issue an order
prohibiting use.
6326. Every person who, after such notice is attached as provided
in Section 6325, enters any such place of employment, or uses or
operates any such place of employment, machine, device, apparatus, or
equipment before it is made safe and the required safeguards or
safety appliances or devices are provided, or who defaces, destroys
or removes any such notice without the authority of the division, is
guilty of a misdemeanor punishable by a fine of up to one thousand
dollars ($1,000), or up to one year in the county jail, or both.
6327. Once an authorized representative of the division has
prohibited entry in or use of a place of employment, machine, device,
apparatus, or equipment, as specified in Section 6325, the employer
may contest the order and shall be granted, upon request, a hearing
by the division to review the validity of the representative's order.
The hearing shall be held within 24 hours following the employer's
request.
6327.5. If the division arbitrarily or capriciously fails to take
action to prevent or prohibit any conditions or practices in any
employment or place of employment which are such that danger exists
which could reasonably be expected to cause death or serious physical
harm immediately or before the imminence of such danger can be
eliminated through other available means, any employee who may be
injured by reason of such failure, or the representatives of such
employees, may bring an action against the chief of the division in
any appropriate court for a writ of mandate to compel the division to
prevent or prohibit the condition. Nothing contained in this section
shall be deemed to prevent the bringing of a writ of mandate against
any appropriate person or entity as may be provided by law.
6328. The division shall prepare a notice containing pertinent
information regarding safety rules and regulations. The notice shall
contain the address and telephone number of the nearest division
office; a clear explanation of an employee's right to report any
unsafe working conditions; the right to request a safety inspection
by the division for unsafe conditions; the right to refuse to work
under conditions which endanger his life or health; the right to
receive information under the Hazardous Substances Information and
Training Act (Ch. 2.5 (commencing with Section 6360)); posting and
notice requirements of employers and the division; and any other
information the division deems necessary. It shall be supplied to
employers as soon as practical. The division shall promulgate
regulations on the content and the required location and number of
notices which must be posted by employers. Sufficient posters in both
English and Spanish shall be printed to supply employers in this
state.
6329. All money collected for violation of standards, orders, or
special orders of, or for fees paid pursuant to this division shall
be paid into the state treasury to the credit of the General Fund.
The Department of Industrial Relations shall account to the
Department of Finance and the State Controller for all moneys so
received and furnish proper vouchers therefor.
6330. The director shall prepare and submit to the Legislature, not
later than March 1, an annual report on the division activities. The
report shall include, but need not be limited to, the following
information for the previous calendar year:
(a) The amount of funds allocated and spent in enforcement,
education and research, and administration by the division.
(b) Total inspections made, and citations issued by the division.
(c) The number of civil penalties assessed, total amount of fines
collected and the number of appeals heard.
(d) The number of contractors referred to the Contractor's State
License Board for hearing, pursuant to Section 7109.5 of the Business
and Professions Code, and the total number of these cases resulting
in suspension or revocation of a license.
(e) The report from the division prepared by the Bureau of
Investigations for submission to the director pursuant to Section
6315.3.
(f) Recommendations for legislation which improves the ability of
the division to provide safety in places of employment.
The report shall be made to the Speaker of the Assembly and the
Chairman of the Rules Committee of the Senate, for assignment to the
appropriate committee or committees for evaluation.
6331. The division shall enter into a contract for the development
and execution of tests to define safety standards for the use of
positive pressure, closed circuit, breathing apparatus in interior
structural fires. The testing shall define numerically what
constitutes positive pressure in breathing apparatus. The testing
shall also address the issues of the heat of the oxygen coming into
the mask, the condensation inside the mask, the possibility of, and
effect of, moisture condensation in the lungs of the wearer of the
mask, and the risks associated with a dislodgement of the mask in an
interior structural fire situation. The development of these tests
shall utilize the resources of recognized specialists in fire
research to design, conduct, and execute the tests and develop the
standards. The standards board shall adopt or revise safety standards
based on the results of these tests.
The test parameters, the location where the testing will take
place, and the level of expertise required shall be determined by the
Cal-OSHA Self Contained Breathing Apparatus Advisory Committee.
6332. (a) For purposes of this section, the following terms have
the following meanings:
(1) "Community health care worker" means an individual who
provides health care or health care-related services to clients in
home settings.
(2) "Employer" means a person or entity that employs a community
health care worker. "Employer" does not include an individual who is
a recipient of home-based services and who is responsible for hiring
his or her own community health care worker.
(3) "Violence" means a physical assault or a threat of a physical
assault.
(b) Every employer shall keep a record of any violence committed
against a community health care worker and shall file a copy of that
record with the Division of Labor Statistics and Research in the form
and detail and within the time limits prescribed by the Division of
Labor Statistics and Research.
