6400. (a) Every employer shall furnish employment and a place of
employment that is safe and healthful for the employees therein.
(b) On multiemployer worksites, both construction and
nonconstruction, citations may be issued only to the following
categories of employers when the division has evidence that an
employee was exposed to a hazard in violation of any requirement
enforceable by the division:
(1) The employer whose employees were exposed to the hazard (the
exposing employer).
(2) The employer who actually created the hazard (the creating
employer).
(3) The employer who was responsible, by contract or through
actual practice, for safety and health conditions on the worksite,
which is the employer who had the authority for ensuring that the
hazardous condition is corrected (the controlling employer).
(4) The employer who had the responsibility for actually
correcting the hazard (the correcting employer).
The employers listed in paragraphs (2) to (4), inclusive, of this
subdivision may be cited regardless of whether their own employees
were exposed to the hazard.
(c) It is the intent of the Legislature, in adding subdivision (b)
to this section, to codify existing regulations with respect to the
responsibility of employers at multiemployer worksites. Subdivision
(b) of this section is declaratory of existing law and shall not be
construed or interpreted as creating a new law or as modifying or
changing an existing law.
6401. Every employer shall furnish and use safety devices and
safeguards, and shall adopt and use practices, means, methods,
operations, and processes which are reasonably adequate to render
such employment and place of employment safe and healthful. Every
employer shall do every other thing reasonably necessary to protect
the life, safety, and health of employees.
6401.5. No salvage of materials shall be permitted while demolition
is in progress on any building, structure, falsework, or scaffold
more than three stories high or the equivalent height for which a
permit is required under subdivision (c) of Section 6500.
For this purpose salvage does not include removal of material from
premises solely for the purpose of clearing the area to facilitate
the continuation of the demolition.
6401.7. (a) Every employer shall establish, implement, and maintain
an effective injury prevention program. The program shall be
written, except as provided in subdivision (e), and shall include,
but not be limited to, the following elements:
(1) Identification of the person or persons responsible for
implementing the program.
(2) The employer's system for identifying and evaluating workplace
hazards, including scheduled periodic inspections to identify unsafe
conditions and work practices.
(3) The employer's methods and procedures for correcting unsafe or
unhealthy conditions and work practices in a timely manner.
(4) An occupational health and safety training program designed to
instruct employees in general safe and healthy work practices and to
provide specific instruction with respect to hazards specific to
each employee's job assignment.
(5) The employer's system for communicating with employees on
occupational health and safety matters, including provisions designed
to encourage employees to inform the employer of hazards at the
worksite without fear of reprisal.
(6) The employer's system for ensuring that employees comply with
safe and healthy work practices, which may include disciplinary
action.
(b) The employer shall correct unsafe and unhealthy conditions and
work practices in a timely manner based on the severity of the
hazard.
(c) The employer shall train all employees when the training
program is first established, all new employees, and all employees
given a new job assignment, and shall train employees whenever new
substances, processes, procedures, or equipment are introduced to the
workplace and represent a new hazard, and whenever the employer
receives notification of a new or previously unrecognized hazard.
Beginning January 1, 1994, an employer in the construction industry
who is required to be licensed under Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code may
use employee training provided to the employer's employees under a
construction industry occupational safety and health training program
approved by the division to comply with the requirements of
subdivision (a) relating to employee training, and shall only be
required to provide training on hazards specific to an employee's job
duties.
(d) The employer shall keep appropriate records of steps taken to
implement and maintain the program. Beginning January 1, 1994, an
employer in the construction industry who is required to be licensed
under Chapter 9 (commencing with Section 7000) of Division 3 of the
Business and Professions Code may use records relating to employee
training provided to the employer in connection with an occupational
safety and health training program approved by the division to comply
with the requirements of this subdivision, and shall only be
required to keep records of those steps taken to implement and
maintain the program with respect to hazards specific to an employee'
s job duties.
(e) (1) The standards board shall adopt a standard setting forth
the employer's duties under this section, on or before January 1,
1991, consistent with the requirements specified in subdivisions (a),
(b), (c), and (d). The standards board, in adopting the standard,
shall include substantial compliance criteria for use in evaluating
an employer's injury prevention program. The board may adopt less
stringent criteria for employers with few employees and for employers
in industries with insignificant occupational safety or health
hazards.
(2) Notwithstanding subdivision (a), for employers with fewer than
20 employees who are in industries that are not on a designated list
of high hazard industries and who have a workers' compensation
experience modification rate of 1.1 or less, and for any employers
with fewer than 20 employees who are in industries that are on a
designated list of low hazard industries, the board shall adopt a
standard setting forth the employer's duties under this section
consistent with the requirements specified in subdivisions (a), (b),
and (c), except that the standard shall only require written
documentation to the extent of documenting the person or persons
responsible for implementing the program pursuant to paragraph (1) of
subdivision (a), keeping a record of periodic inspections pursuant
to paragraph (2) of subdivision (a), and keeping a record of employee
training pursuant to paragraph (4) of subdivision (a). To any extent
beyond the specifications of this subdivision, the standard shall
not require the employer to keep the records specified in subdivision
(d).
(3) The division shall establish a list of high hazard industries
using the methods prescribed in Section 6314.1 for identifying and
targeting employers in high hazard industries. For purposes of this
subdivision, the "designated list of high hazard industries" shall be
the list established pursuant to this paragraph.
For the purpose of implementing this subdivision, the Department
of Industrial Relations shall periodically review, and as necessary
revise, the list.
(4) For the purpose of implementing this subdivision, the
Department of Industrial Relations shall also establish a list of low
hazard industries, and shall periodically review, and as necessary
revise, that list.
(f) The standard adopted pursuant to subdivision (e) shall
specifically permit employer and employee occupational safety and
health committees to be included in the employer's injury prevention
program. The board shall establish criteria for use in evaluating
employer and employee occupational safety and health committees. The
criteria shall include minimum duties, including the following:
(1) Review of the employer's (A) periodic, scheduled worksite
inspections, (B) investigation of causes of incidents resulting in
injury, illness, or exposure to hazardous substances, and (C)
investigation of any alleged hazardous condition brought to the
attention of any committee member. When determined necessary by the
committee, the committee may conduct its own inspections and
investigations.
(2) Upon request from the division, verification of abatement
action taken by the employer as specified in division citations.
If an employer's occupational safety and health committee meets
the criteria established by the board, it shall be presumed to be in
substantial compliance with paragraph (5) of subdivision (a).
(g) The division shall adopt regulations specifying the procedures
for selecting employee representatives for employer-employee
occupational health and safety committees when these procedures are
not specified in an applicable collective bargaining agreement. No
employee or employee organization shall be held liable for any act or
omission in connection with a health and safety committee.
(h) The employer's injury prevention program, as required by this
section, shall cover all of the employer's employees and all other
workers who the employer controls or directs and directly supervises
on the job to the extent these workers are exposed to worksite and
job assignment specific hazards. Nothing in this subdivision shall
affect the obligations of a contractor or other employer that
controls or directs and directly supervises its own employees on the
job.
(i) When a contractor supplies its employee to a state agency
employer on a temporary basis, the state agency employer may assess a
fee upon the contractor to reimburse the state agency for the
additional costs, if any, of including the contract employee within
the state agency's injury prevention program.
(j) (1) The division shall prepare a Model Injury and Illness
Prevention Program for Non-High-Hazard Employment, and shall make
copies of the model program prepared pursuant to this subdivision
available to employers, upon request, for posting in the workplace.
An employer who adopts and implements the model program prepared by
the division pursuant to this paragraph in good faith shall not be
assessed a civil penalty for the first citation for a violation of
this section issued after the employer's adoption and implementation
of the model program.
(2) For purposes of this subdivision, the division shall establish
a list of non-high-hazard industries in California. These
industries, identified by their Standard Industrial Classification
Codes, as published by the United States Office of Management and
Budget in the Manual of Standard Industrial Classification Codes,
1987 Edition, are apparel and accessory stores (Code 56), eating and
drinking places (Code 58), miscellaneous retail (Code 59), finance,
insurance, and real estate (Codes 60-67), personal services (Code
72), business services (Code 73), motion pictures (Code 78) except
motion picture production and allied services (Code 781), legal
services (Code 81), educational services (Code 82), social services
(Code 83), museums, art galleries, and botanical and zoological
gardens (Code 84), membership organizations (Code 86), engineering,
accounting, research, management, and related services (Code 87),
private households (Code 88), and miscellaneous services (Code 89).
To further identify industries that may be included on the list, the
division shall also consider data from a rating organization, as
defined in Section 11750.1 of the Insurance Code, the Division of
Labor Statistics and Research, and all other appropriate information.
The list shall be established by June 30, 1994, and shall be
reviewed, and as necessary revised, biennially.
(3) The division shall prepare a Model Injury and Illness
Prevention Program for Employers in Industries with Intermittent
Employment, and shall determine which industries have historically
utilized seasonal or intermittent employees. An employer in an
industry determined by the division to have historically utilized
seasonal or intermittent employees shall be deemed to have complied
with the requirements of subdivision (a) with respect to a written
injury prevention program if the employer adopts the model program
prepared by the division pursuant to this paragraph and complies with
any instructions relating thereto.
(k) With respect to any county, city, city and county, or
district, or any public or quasi-public corporation or public agency
therein, including any public entity, other than a state agency, that
is a member of, or created by, a joint powers agreement, subdivision
(d) shall not apply.
(l) Every workers' compensation insurer shall conduct a review,
including a written report as specified below, of the injury and
illness prevention program (IIPP) of each of its insureds with an
experience modification of 2.0 or greater within six months of the
commencement of the initial insurance policy term. The review shall
determine whether the insured has implemented all of the required
components of the IIPP, and evaluate their effectiveness. The
training component of the IIPP shall be evaluated to determine
whether training is provided to line employees, supervisors, and
upper level management, and effectively imparts the information and
skills each of these groups needs to ensure that all of the insured's
specific health and safety issues are fully addressed by the
insured. The reviewer shall prepare a detailed written report
specifying the findings of the review and all recommended changes
deemed necessary to make the IIPP effective. The reviewer shall be or
work under the direction of a licensed California professional
engineer, certified safety professional, or a certified industrial
hygienist.
6402. No employer shall require, or permit any employee to go or be
in any employment or place of employment which is not safe and
healthful.
6403. No employer shall fail or neglect to do any of the following:
(a) To provide and use safety devices and safeguards reasonably
adequate to render the employment and place of employment safe.
(b) To adopt and use methods and processes reasonably adequate to
render the employment and place of employment safe.
(c) To do every other thing reasonably necessary to protect the
life, safety, and health of employees.
6404. No employer shall occupy or maintain any place of employment
that is not safe and healthful.
6404.5. (a) The Legislature finds and declares that regulation of
smoking in the workplace is a matter of statewide interest and
concern. It is the intent of the Legislature in enacting this section
to prohibit the smoking of tobacco products in all (100 percent of)
enclosed places of employment in this state, as covered by this
section, thereby eliminating the need of local governments to enact
workplace smoking restrictions within their respective jurisdictions.
It is further the intent of the Legislature to create a uniform
statewide standard to restrict and prohibit the smoking of tobacco
products in enclosed places of employment, as specified in this
section, in order to reduce employee exposure to environmental
tobacco smoke to a level that will prevent anything other than
insignificantly harmful effects to exposed employees, and also to
eliminate the confusion and hardship that can result from enactment
or enforcement of disparate local workplace smoking restrictions.
Notwithstanding any other provision of this section, it is the intent
of the Legislature that any area not defined as a "place of
employment" pursuant to subdivision (d) or in which the smoking of
tobacco products is not regulated pursuant to subdivision (e) shall
be subject to local regulation of smoking of tobacco products.
(b) No employer shall knowingly or intentionally permit, and no
person shall engage in, the smoking of tobacco products in an
enclosed space at a place of employment. "Enclosed space" includes
lobbies, lounges, waiting areas, elevators, stairwells, and restrooms
that are a structural part of the building and not specifically
defined in subdivision (d).
(c) For purposes of this section, an employer who permits any
nonemployee access to his or her place of employment on a regular
basis has not acted knowingly or intentionally in violation of this
section if he or she has taken the following reasonable steps to
prevent smoking by a nonemployee:
(1) Posted clear and prominent signs, as follows:
(A) Where smoking is prohibited throughout the building or
structure, a sign stating "No smoking" shall be posted at each
entrance to the building or structure.
(B) Where smoking is permitted in designated areas of the building
or structure, a sign stating "Smoking is prohibited except in
designated areas" shall be posted at each entrance to the building or
structure.
(2) Has requested, when appropriate, that a nonemployee who is
smoking refrain from smoking in the enclosed workplace.
For purposes of this subdivision, "reasonable steps" does not
include (A) the physical ejection of a nonemployee from the place of
employment or (B) any requirement for making a request to a
nonemployee to refrain from smoking, under circumstances involving a
risk of physical harm to the employer or any employee.
(d) For purposes of this section, "place of employment" does not
include any of the following:
(1) Sixty-five percent of the guestroom accommodations in a hotel,
motel, or similar transient lodging establishment.
(2) Areas of the lobby in a hotel, motel, or other similar
transient lodging establishment designated for smoking by the
establishment. An establishment may permit smoking in a designated
lobby area that does not exceed 25 percent of the total floor area of
the lobby or, if the total area of the lobby is 2,000 square feet or
less, that does not exceed 50 percent of the total floor area of the
lobby. For purposes of this paragraph, "lobby" means the common
public area of an establishment in which registration and other
similar or related transactions, or both, are conducted and in which
the establishment's guests and members of the public typically
congregate.
(3) Meeting and banquet rooms in a hotel, motel, other transient
lodging establishment similar to a hotel or motel, restaurant, or
public convention center, except while food or beverage functions are
taking place, including setup, service, and cleanup activities, or
when the room is being used for exhibit purposes. At times when
smoking is not permitted in a meeting or banquet room pursuant to
this paragraph, the establishment may permit smoking in corridors and
prefunction areas adjacent to and serving the meeting or banquet
room if no employee is stationed in that corridor or area on other
than a passing basis.
(4) Retail or wholesale tobacco shops and private smokers'
lounges. For purposes of this paragraph:
(A) "Private smokers' lounge" means any enclosed area in or
attached to a retail or wholesale tobacco shop that is dedicated to
the use of tobacco products, including, but not limited to, cigars
and pipes.
(B) "Retail or wholesale tobacco shop" means any business
establishment the main purpose of which is the sale of tobacco
products, including, but not limited to, cigars, pipe tobacco, and
smoking accessories.
(5) Cabs of motortrucks, as defined in Section 410 of the Vehicle
Code, or truck tractors, as defined in Section 655 of the Vehicle
Code, if no nonsmoking employees are present.
(6) Warehouse facilities. For purposes of this paragraph,
"warehouse facility" means a warehouse facility with more than
100,000 square feet of total floorspace, and 20 or fewer full-time
employees working at the facility, but does not include any area
within a facility that is utilized as office space.
(7) Gaming clubs, in which smoking is permitted by subdivision
(f). For purposes of this paragraph, "gaming club" means any gaming
club, as defined in Section 19802 of the Business and Professions
Code, or bingo facility, as defined in Section 326.5 of the Penal
Code, that restricts access to minors under 18 years of age.
(8) Bars and taverns, in which smoking is permitted by subdivision
(f). For purposes of this paragraph, "bar" or "tavern" means a
facility primarily devoted to the serving of alcoholic beverages for
consumption by guests on the premises, in which the serving of food
is incidental. "Bar or tavern" includes those facilities located
within a hotel, motel, or other similar transient occupancy
establishment. However, when located within a building in conjunction
with another use, including a restaurant, "bar" or "tavern" includes
only those areas used primarily for the sale and service of
alcoholic beverages. "Bar" or "tavern" does not include the dining
areas of a restaurant, regardless of whether alcoholic beverages are
served therein.
(9) Theatrical production sites, if smoking is an integral part of
the story in the theatrical production.
(10) Medical research or treatment sites, if smoking is integral
to the research and treatment being conducted.
(11) Private residences, except for private residences licensed as
family day care homes, during the hours of operation as family day
care homes and in those areas where children are present.
(12) Patient smoking areas in long-term health care facilities, as
defined in Section 1418 of the Health and Safety Code.
(13) Breakrooms designated by employers for smoking, provided that
all of the following conditions are met:
(A) Air from the smoking room shall be exhausted directly to the
outside by an exhaust fan. Air from the smoking room shall not be
recirculated to other parts of the building.
(B) The employer shall comply with any ventilation standard or
other standard utilizing appropriate technology, including, but not
limited to, mechanical, electronic, and biotechnical systems, adopted
by the Occupational Safety and Health Standards Board or the federal
Environmental Protection Agency. If both adopt inconsistent
standards, the ventilation standards of the Occupational Safety and
Health Standards Board shall be no less stringent than the standards
adopted by the federal Environmental Protection Agency.
(C) The smoking room shall be located in a nonwork area where no
one, as part of his or her work responsibilities, is required to
enter. For purposes of this subparagraph, "work responsibilities"
does not include any custodial or maintenance work carried out in the
breakroom when it is unoccupied.
(D) There are sufficient nonsmoking breakrooms to accommodate
nonsmokers.
(14) Employers with a total of five or fewer employees, either
full time or part time, may permit smoking where all of the following
conditions are met:
(A) The smoking area is not accessible to minors.
(B) All employees who enter the smoking area consent to permit
smoking. No one, as part of his or her work responsibilities, shall
be required to work in an area where smoking is permitted. An
employer who is determined by the division to have used coercion to
obtain consent or who has required an employee to work in the smoking
area shall be subject to the penalty provisions of Section 6427.
(C) Air from the smoking area shall be exhausted directly to the
outside by an exhaust fan. Air from the smoking area shall not be
recirculated to other parts of the building.
(D) The employer shall comply with any ventilation standard or
other standard utilizing appropriate technology, including, but not
limited to, mechanical, electronic, and biotechnical systems, adopted
by the Occupational Safety and Health Standards Board or the federal
Environmental Protection Agency. If both adopt inconsistent
standards, the ventilation standards of the Occupational Safety and
Health Standards Board shall be no less stringent than the standards
adopted by the federal Environmental Protection Agency.
This paragraph shall not be construed to (i) supersede or render
inapplicable any condition or limitation on smoking areas made
applicable to specific types of business establishments by any other
paragraph of this subdivision or (ii) apply in lieu of any otherwise
applicable paragraph of this subdivision that has become inoperative.
(e) Paragraphs (13) and (14) of subdivision (d) shall not be
construed to require employers to provide reasonable accommodation to
smokers, or to provide breakrooms for smokers or nonsmokers.
(f) (1) Except as otherwise provided in this subdivision, smoking
may be permitted in gaming clubs, as defined in paragraph (7) of
subdivision (d), and in bars and taverns, as defined in paragraph (8)
of subdivision (d), until the earlier of the following:
(A) January 1, 1998.
(B) The date of adoption of a regulation (i) by the Occupational
Safety and Health Standards Board reducing the permissible employee
exposure level to environmental tobacco smoke to a level that will
prevent anything other than insignificantly harmful effects to
exposed employees or (ii) by the federal Environmental Protection
Agency establishing a standard for reduction of permissible exposure
to environmental tobacco smoke to an exposure level that will prevent
anything other than insignificantly harmful effects to exposed
persons.
(2) If a regulation specified in subparagraph (B) of paragraph (1)
is adopted on or before January 1, 1998, smoking may thereafter be
permitted in gaming clubs and in bars and taverns, subject to full
compliance with, or conformity to, the standard in the regulation
within two years following the date of adoption of the regulation. An
employer failing to achieve compliance with, or conformity to, the
regulation within this two-year period shall prohibit smoking in the
gaming club, bar, or tavern until compliance or conformity is
achieved. If the Occupational Safety and Health Standards Board and
the federal Environmental Protection Agency both adopt regulations
specified in subparagraph (B) of paragraph (1) that are inconsistent,
the regulations of the Occupational Safety and Health Standards
Board shall be no less stringent than the regulations of the federal
Environmental Protection Agency.
(3) If a regulation specified in subparagraph (B) of paragraph (1)
is not adopted on or before January 1, 1998, the exemptions
specified in paragraphs (7) and (8) of subdivision (d) shall become
inoperative on and after January 1, 1998, until a regulation is
adopted. Upon adoption of such a regulation on or after January 1,
1998, smoking may thereafter be permitted in gaming clubs and in bars
and taverns, subject to full compliance with, or conformity to, the
standard in the regulation within two years following the date of
adoption of the regulation. An employer failing to achieve compliance
with, or conformity to, the regulation within this two-year period
shall prohibit smoking in the gaming club, bar, or tavern until
compliance or conformity is achieved. If the Occupational Safety and
Health Standards Board and the federal Environmental Protection
Agency both adopt regulations specified in subparagraph (B) of
paragraph (1) that are inconsistent, the regulations of the
Occupational Safety and Health Standards Board shall be no less
stringent than the regulations of the federal Environmental
Protection Agency.
(4) From January 1, 1997, to December 31, 1997, inclusive, smoking
may be permitted in gaming clubs, as defined in paragraph (7) of
subdivision (d), and in bars and taverns, as defined in paragraph (8)
of subdivision (d), subject to both of the following conditions:
(A) If practicable, the gaming club or bar or tavern shall
establish a designated nonsmoking area.
(B) If feasible, no employee shall be required, in the performance
of ordinary work responsibilities, to enter any area in which
smoking is permitted.
(g) The smoking prohibition set forth in this section shall
constitute a uniform statewide standard for regulating the smoking of
tobacco products in enclosed places of employment and shall
supersede and render unnecessary the local enactment or enforcement
of local ordinances regulating the smoking of tobacco products in
enclosed places of employment. Insofar as the smoking prohibition set
forth in this section is applicable to all (100-percent) places of
employment within this state and, therefore, provides the maximum
degree of coverage, the practical effect of this section is to
eliminate the need of local governments to enact enclosed workplace
smoking restrictions within their respective jurisdictions.
(h) Nothing in this section shall prohibit an employer from
prohibiting smoking in an enclosed place of employment for any
reason.
(i) The enactment of local regulation of smoking of tobacco
products in enclosed places of employment by local governments shall
be suspended only for as long as, and to the extent that, the
(100-percent) smoking prohibition provided for in this section
remains in effect. In the event this section is repealed or modified
by subsequent legislative or judicial action so that the
(100-percent) smoking prohibition is no longer applicable to all
enclosed places of employment in California, local governments shall
have the full right and authority to enforce previously enacted, and
to enact and enforce new, restrictions on the smoking of tobacco
products in enclosed places of employment within their jurisdictions,
including a complete prohibition of smoking. Notwithstanding any
other provision of this section, any area not defined as a "place of
employment" or in which smoking is not regulated pursuant to
subdivision (d) or (e), shall be subject to local regulation of
smoking of tobacco products.
(j) Any violation of the prohibition set forth in subdivision (b)
is an infraction, punishable by a fine not to exceed one hundred
dollars ($100) for a first violation, two hundred dollars ($200) for
a second violation within one year, and five hundred dollars ($500)
for a third and for each subsequent violation within one year. This
subdivision shall be enforced by local law enforcement agencies,
including, but not limited to, local health departments, as
determined by the local governing body.
(k) Notwithstanding Section 6309, the division shall not be
required to respond to any complaint regarding the smoking of tobacco
products in an enclosed space at a place of employment, unless the
employer has been found guilty pursuant to subdivision (j) of a third
violation of subdivision (b) within the previous year.
(l) If any provision of this act or the application thereof to any
person or circumstances is held invalid, that invalidity shall not
affect other provisions or applications of the act that can be given
effect without the invalid provision or application, and to this end
the provisions of this act are severable.
6405. No employer, owner, or lessee of any real property shall
construct or cause to be constructed any place of employment that is
not safe and healthful.
6406. No person shall do any of the following:
(a) Remove, displace, damage, destroy or carry off any safety
device, safeguard, notice, or warning, furnished for use in any
employment or place of employment.
(b) Interfere in any way with the use thereof by any other person.
(c) Interfere with the use of any method or process adopted for
the protection of any employee, including himself, in such
employment, or place of employment.
(d) Fail or neglect to do every other thing reasonably necessary
to protect the life, safety, and health of employees.
6407. Every employer and every employee shall comply with
occupational safety and health standards, with Section 25910 of the
Health and Safety Code, and with all rules, regulations, and orders
pursuant to this division which are applicable to his own actions and
conduct.
6408. All employers shall provide information to employees in the
following ways, as prescribed by authorized regulations:
(a) Posting of information regarding protections and obligations
of employees under occupational safety and health laws.
(b) Posting prominently each citation issued under Section 6317,
or a copy or copies thereof, at or near each place a violation
referred to in the notice of violation occurred.
(c) The opportunity for employees or their representatives to
observe monitoring or measuring of employee exposure to hazards
conducted pursuant to standards promulgated under Section 142.3.
(d) Allow access by employees or their representatives to accurate
records of employee exposures to potentially toxic materials or
harmful physical agents.
(e) Notification of any employee who has been or is being exposed
to toxic materials or harmful physical agents in concentrations or at
levels exceeding those prescribed by an applicable standard, order,
or special order, and informing any employee so exposed of corrective
action being taken.
6409. (a) Every physician as defined in Section 3209.3 who attends
any injured employee shall file a complete report of every
occupational injury or occupational illness to the employee with the
employer, or if insured, with the employer's insurer, on forms
prescribed for that purpose by the Division of Labor Statistics and
Research. A portion of the form shall be completed by the injured
employee, if he or she is able to do so, describing how the injury or
illness occurred. The form shall be filed within five days of the
initial examination. Inability or failure of an injured employee to
complete his or her portion of the form shall not affect the employee'
s rights under this code, and shall not excuse any delay in filing
the form. The employer or insurer, as the case may be, shall file the
physician's report with the Department of Industrial Relations,
through its Division of Labor Statistics and Research, within five
days of receipt. Each report of occupational injury or occupational
illness shall indicate the social security number of the injured
employee. If the treatment is for pesticide poisoning or a condition
suspected to be pesticide poisoning, the physician shall also file a
complete report, which need not include the affidavit required
pursuant to this section, with the Division of Labor Statistics and
Research, and within 24 hours of the initial examination shall file a
complete report with the local health officer by facsimile
transmission or other means. If the treatment is for pesticide
poisoning or a condition suspected to be pesticide poisoning, the
physician shall not be compensated for the initial diagnosis and
treatment unless the report is filed with the employer, or if
insured, with the employer's insurer, and includes or is accompanied
by a signed affidavit which certifies that a copy of the report was
filed with the local health officer pursuant to the requirements of
this section.
(b) As used in this section, "occupational illness" means any
abnormal condition or disorder caused by exposure to environmental
factors associated with employment, including acute and chronic
illnesses or diseases which may be caused by inhalation, absorption,
ingestion, or direct contact.
6409.1. (a) Every employer shall file a complete report of every
occupational injury or occupational illness, as defined in
subdivision (b) of Section 6409, to each employee which results in
lost time beyond the date of the injury or illness, or which requires
medical treatment beyond first aid. An insured employer shall file
the report with the insurer on a form prescribed by the
Administrative Director of the Division of Workers' Compensation for
that purpose within five days after the employer obtains knowledge of
the injury or illness that has, or is alleged to have, arisen out of
and in the course of employment. A self-insured employer, the state,
or the insurer of an insured employer shall file the report in the
electronic form prescribed for that purpose by the administrative
director pursuant to Section 138.6 within the time prescribed by the
administrative director. The administrative director shall ensure
that the report required by this subdivision contains necessary
information to continue to be acceptable as substitute documentation
for purposes of recordkeeping required under the federal Occupational
Safety and Health Act of 1970 (29 U.S.C. Sec. 651 et seq.). Each
report of occupational injury or occupational illness shall indicate
the social security number of the injured employee. In the event an
employer has filed a report of injury or illness pursuant to this
subdivision and the employee subsequently dies as a result of the
reported injury or illness, the employer shall file an amended report
indicating the death with the Department of Industrial Relations,
through its Division of Workers' Compensation or, if an insured
employer, with the insurer, within five days after the employer is
notified or learns of the death. A copy of any amended reports
received by the insurer shall be filed with the Division of Workers'
Compensation in electronic form as prescribed by the administrative
director.
(b) In every case involving a serious injury or illness, or death,
in addition to the report required by subdivision (a), a report
shall be made immediately by the employer to the Division of
Occupational Safety and Health by telephone or telegraph. An employer
who violates this subdivision may be assessed a civil penalty of not
less than five thousand dollars ($5,000). Nothing in this
subdivision shall be construed to increase the maximum civil penalty,
pursuant to Sections 6427 to 6430, inclusive, that may be imposed
for a violation of this section.
6409.2. Whenever a state, county, or local fire or police agency is
called to an accident involving an employee covered by this part in
which a serious injury or illness, or death occurs, the responding
agency shall immediately notify the nearest office of the Division of
Occupational Safety and Health by telephone. Thereafter, the
division shall immediately notify the appropriate prosecuting
authority of the accident.
6409.3. In no case shall the treatment administered for pesticide
poisoning or a condition suspected as pesticide poisoning be deemed
to be first aid treatment.
6409.5. (a) Whenever any local public fire agency has knowledge
that a place of employment where garment manufacturing operations
take place contains fire or safety hazards for which fire and injury
prevention measures have not been taken in accordance with local fire
and life safety ordinances, the agency may notify the Division of
Occupational Safety and Health. This referral shall be made only
after the garment manufacturing employer has been given a reasonable
amount of time to correct violations.
(b) Whenever the Division of Occupational Safety and Health has
knowledge or reasonable suspicion that a place of employment where
garment manufacturing operations take place contains fire or safety
hazards for which fire and injury prevention measures have not been
taken in accordance with local fire and life safety ordinances, the
division shall notify the appropriate local public fire agency.
(c) Whenever the Division of Occupational Safety and Health
receives a referral by a local public fire agency pursuant to
subdivision (a) which informs the division that a place of employment
where garment manufacturing operations take place is not safe or is
injurious to the welfare of any employee, it shall constitute a
complaint for purposes of Section 6309 and shall be investigated.
(d) Whenever a local public fire agency receives a referral by the
Division of Occupational Safety and Health pursuant to subdivision
(b) which informs the local public fire agency that a place of
employment where garment manufacturing operations take place is not
safe or is injurious to the welfare of any employee, the local public
fire agency may investigate the referral at its discretion.
(e) (1) If the Division of Occupational Safety and Health acquires
knowledge that the garment manufacturing employer is not currently
registered, it shall notify the Division of Labor Standards
Enforcement.
(2) Local public fire agencies may make referrals of individuals
not registered as garment manufacturers to the Division of Labor
Standards Enforcement.
(3) Whenever the Division of Labor Standards Enforcement is
informed by the Division of Occupational Safety and Health or by a
local public fire agency that a garment manufacturing employer is
unregistered, the Division of Labor Standards Enforcement shall take
measures it deems appropriate to obtain compliance.
6410. The reports required by subdivision (a) of Section 6409 and
Section 6413 shall be made in the form and detail and within the time
limits prescribed by reasonable rules and regulations adopted by the
Division of Labor Statistics and Research in accordance with Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code.
Nothing in this chapter requiring recordkeeping and reporting by
employers shall relieve the employer of maintaining records and
making reports to the assistant secretary, United States Department
of Labor, as required under the Federal Occupational Safety and
Health Act of 1970 (P.L. 91-596). The Division of Labor Statistics
and Research shall prescribe and provide the forms necessary for
maintenance of the required records, and the Division of Occupational
Safety and Health shall enforce by citation and penalty assessment
any violation of the recordkeeping requirements of this chapter.
All state and local government employers shall maintain records
and make reports in the same manner and to the same extent as
required of other employers by this section.
6410.5. The reports required by subdivision (a) of Section 6409,
subdivision (a) of Section 6409.1, and Section 6413 shall contain,
prominently stated, the statement set forth in Section 5401.7.
6411. Every employer or insurer receiving forms with directions
from the Division of Labor Statistics and Research to complete them
shall cause them to be properly filled out so as to answer fully and
correctly each question propounded therein. In case of inability to
answer any such questions, a good and sufficient reason shall be
given for such failure.
6412. No report of injury or illness required by subdivision (a) of
Section 6409.1 shall be open to public inspection or made public,
nor shall those reports be admissible as evidence in any adversary
proceeding before the Workers' Compensation Appeals Board. However,
the reports required of physicians by subdivision (a) of Section 6409
shall be admissible as evidence in the proceeding, except that no
physician's report shall be admissible as evidence to bar proceedings
for the collection of compensation, and the portion of any physician'
s report completed by an employee shall not be admissible as evidence
in any proceeding before the Workers' Compensation Appeals Board.
6413. (a) The Department of Corrections, and every physician or
surgeon who attends any injured state prisoner, shall file with the
Division of Labor Statistics and Research a complete report, on forms
prescribed under Sections 6409 and 6409.1, of every injury to each
state prisoner, resulting from any labor performed by the prisoner
unless disability resulting from such injury does not last through
the day or does not require medical service other than ordinary first
aid treatment.
(b) Where the injury results in death a report, in addition to the
report required by subdivision (a), shall forthwith be made by the
Department of Corrections to the Division of Labor Statistics and
Research by telephone or telegraph.
(c) Except as provided in Section 6304.2, nothing in this section
or in this code shall be deemed to make a prisoner an employee, for
any purpose, of the Department of Corrections.
(d) Notwithstanding subdivision (a), no physician or surgeon who
attends any injured state prisoner outside of a Department of
Corrections institution shall be required to file the report required
by subdivision (a), but the Department of Corrections shall file the
report.
6413.2. (a) The Division of Labor Statistics and Research shall,
within five working days of their receipt, transmit to the Division
of Occupational Safety and Health copies of all reports received by
the Division of Labor Statistics and Research pursuant to Section
6413.
(b) With regard to any report required by Section 6413, the
Division of Occupational Safety and Health may make recommendations
to the Department of Corrections of ways in which the department
might improve the safety of the working conditions and work areas of
state prisoners, and other safety matters. The Department of
Corrections shall not be required to comply with these
recommendations.
(c) With regard to any report required by Section 6413, the
Division of Occupational Safety and Health may, in any case in which
the Department of Corrections has not complied with recommendations
made by the division pursuant to subdivision (b), or in any other
case in which the division deems the safety of any state prisoner
shall require it, conduct hearings and, after these hearings, adopt
special orders, rules, or regulations or otherwise proceed as
authorized in Chapter 1 (commencing with Section 6300) of this part
as it deems necessary. The Department of Corrections shall comply
with any order, rule, or regulation so adopted by the Division of
Occupational Safety and Health.
6413.5. Any employer or physician who fails to comply with any
provision of subdivision (a) of Section 6409, or Section 6409.1,
6409.2, 6409.3, or 6410 may be assessed a civil penalty of not less
than fifty dollars ($50) nor more than two hundred dollars ($200) by
the director or his or her designee if he or she finds a pattern or
practice of violations, or a willful violation of any of these
provisions. Penalty assessments may be contested in the manner
provided in Section 3725. Penalties assessed pursuant to this section
shall be deposited in the General Fund.
6400. (a) Every employer shall furnish employment and a place of
employment that is safe and healthful for the employees therein.
(b) On multiemployer worksites, both construction and
nonconstruction, citations may be issued only to the following
categories of employers when the division has evidence that an
employee was exposed to a hazard in violation of any requirement
enforceable by the division:
(1) The employer whose employees were exposed to the hazard (the
exposing employer).
(2) The employer who actually created the hazard (the creating
employer).
(3) The employer who was responsible, by contract or through
actual practice, for safety and health conditions on the worksite,
which is the employer who had the authority for ensuring that the
hazardous condition is corrected (the controlling employer).
(4) The employer who had the responsibility for actually
correcting the hazard (the correcting employer).
The employers listed in paragraphs (2) to (4), inclusive, of this
subdivision may be cited regardless of whether their own employees
were exposed to the hazard.
(c) It is the intent of the Legislature, in adding subdivision (b)
to this section, to codify existing regulations with respect to the
responsibility of employers at multiemployer worksites. Subdivision
(b) of this section is declaratory of existing law and shall not be
construed or interpreted as creating a new law or as modifying or
changing an existing law.
6401. Every employer shall furnish and use safety devices and
safeguards, and shall adopt and use practices, means, methods,
operations, and processes which are reasonably adequate to render
such employment and place of employment safe and healthful. Every
employer shall do every other thing reasonably necessary to protect
the life, safety, and health of employees.
6401.5. No salvage of materials shall be permitted while demolition
is in progress on any building, structure, falsework, or scaffold
more than three stories high or the equivalent height for which a
permit is required under subdivision (c) of Section 6500.
For this purpose salvage does not include removal of material from
premises solely for the purpose of clearing the area to facilitate
the continuation of the demolition.
6401.7. (a) Every employer shall establish, implement, and maintain
an effective injury prevention program. The program shall be
written, except as provided in subdivision (e), and shall include,
but not be limited to, the following elements:
(1) Identification of the person or persons responsible for
implementing the program.
(2) The employer's system for identifying and evaluating workplace
hazards, including scheduled periodic inspections to identify unsafe
conditions and work practices.
(3) The employer's methods and procedures for correcting unsafe or
unhealthy conditions and work practices in a timely manner.
(4) An occupational health and safety training program designed to
instruct employees in general safe and healthy work practices and to
provide specific instruction with respect to hazards specific to
each employee's job assignment.
(5) The employer's system for communicating with employees on
occupational health and safety matters, including provisions designed
to encourage employees to inform the employer of hazards at the
worksite without fear of reprisal.
(6) The employer's system for ensuring that employees comply with
safe and healthy work practices, which may include disciplinary
action.
(b) The employer shall correct unsafe and unhealthy conditions and
work practices in a timely manner based on the severity of the
hazard.
(c) The employer shall train all employees when the training
program is first established, all new employees, and all employees
given a new job assignment, and shall train employees whenever new
substances, processes, procedures, or equipment are introduced to the
workplace and represent a new hazard, and whenever the employer
receives notification of a new or previously unrecognized hazard.
Beginning January 1, 1994, an employer in the construction industry
who is required to be licensed under Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code may
use employee training provided to the employer's employees under a
construction industry occupational safety and health training program
approved by the division to comply with the requirements of
subdivision (a) relating to employee training, and shall only be
required to provide training on hazards specific to an employee's job
duties.
(d) The employer shall keep appropriate records of steps taken to
implement and maintain the program. Beginning January 1, 1994, an
employer in the construction industry who is required to be licensed
under Chapter 9 (commencing with Section 7000) of Division 3 of the
Business and Professions Code may use records relating to employee
training provided to the employer in connection with an occupational
safety and health training program approved by the division to comply
with the requirements of this subdivision, and shall only be
required to keep records of those steps taken to implement and
maintain the program with respect to hazards specific to an employee'
s job duties.
(e) (1) The standards board shall adopt a standard setting forth
the employer's duties under this section, on or before January 1,
1991, consistent with the requirements specified in subdivisions (a),
(b), (c), and (d). The standards board, in adopting the standard,
shall include substantial compliance criteria for use in evaluating
an employer's injury prevention program. The board may adopt less
stringent criteria for employers with few employees and for employers
in industries with insignificant occupational safety or health
hazards.
(2) Notwithstanding subdivision (a), for employers with fewer than
20 employees who are in industries that are not on a designated list
of high hazard industries and who have a workers' compensation
experience modification rate of 1.1 or less, and for any employers
with fewer than 20 employees who are in industries that are on a
designated list of low hazard industries, the board shall adopt a
standard setting forth the employer's duties under this section
consistent with the requirements specified in subdivisions (a), (b),
and (c), except that the standard shall only require written
documentation to the extent of documenting the person or persons
responsible for implementing the program pursuant to paragraph (1) of
subdivision (a), keeping a record of periodic inspections pursuant
to paragraph (2) of subdivision (a), and keeping a record of employee
training pursuant to paragraph (4) of subdivision (a). To any extent
beyond the specifications of this subdivision, the standard shall
not require the employer to keep the records specified in subdivision
(d).
(3) The division shall establish a list of high hazard industries
using the methods prescribed in Section 6314.1 for identifying and
targeting employers in high hazard industries. For purposes of this
subdivision, the "designated list of high hazard industries" shall be
the list established pursuant to this paragraph.
For the purpose of implementing this subdivision, the Department
of Industrial Relations shall periodically review, and as necessary
revise, the list.
(4) For the purpose of implementing this subdivision, the
Department of Industrial Relations shall also establish a list of low
hazard industries, and shall periodically review, and as necessary
revise, that list.
(f) The standard adopted pursuant to subdivision (e) shall
specifically permit employer and employee occupational safety and
health committees to be included in the employer's injury prevention
program. The board shall establish criteria for use in evaluating
employer and employee occupational safety and health committees. The
criteria shall include minimum duties, including the following:
(1) Review of the employer's (A) periodic, scheduled worksite
inspections, (B) investigation of causes of incidents resulting in
injury, illness, or exposure to hazardous substances, and (C)
investigation of any alleged hazardous condition brought to the
attention of any committee member. When determined necessary by the
committee, the committee may conduct its own inspections and
investigations.
(2) Upon request from the division, verification of abatement
action taken by the employer as specified in division citations.
If an employer's occupational safety and health committee meets
the criteria established by the board, it shall be presumed to be in
substantial compliance with paragraph (5) of subdivision (a).
(g) The division shall adopt regulations specifying the procedures
for selecting employee representatives for employer-employee
occupational health and safety committees when these procedures are
not specified in an applicable collective bargaining agreement. No
employee or employee organization shall be held liable for any act or
omission in connection with a health and safety committee.
(h) The employer's injury prevention program, as required by this
section, shall cover all of the employer's employees and all other
workers who the employer controls or directs and directly supervises
on the job to the extent these workers are exposed to worksite and
job assignment specific hazards. Nothing in this subdivision shall
affect the obligations of a contractor or other employer that
controls or directs and directly supervises its own employees on the
job.
(i) When a contractor supplies its employee to a state agency
employer on a temporary basis, the state agency employer may assess a
fee upon the contractor to reimburse the state agency for the
additional costs, if any, of including the contract employee within
the state agency's injury prevention program.
(j) (1) The division shall prepare a Model Injury and Illness
Prevention Program for Non-High-Hazard Employment, and shall make
copies of the model program prepared pursuant to this subdivision
available to employers, upon request, for posting in the workplace.
An employer who adopts and implements the model program prepared by
the division pursuant to this paragraph in good faith shall not be
assessed a civil penalty for the first citation for a violation of
this section issued after the employer's adoption and implementation
of the model program.
(2) For purposes of this subdivision, the division shall establish
a list of non-high-hazard industries in California. These
industries, identified by their Standard Industrial Classification
Codes, as published by the United States Office of Management and
Budget in the Manual of Standard Industrial Classification Codes,
1987 Edition, are apparel and accessory stores (Code 56), eating and
drinking places (Code 58), miscellaneous retail (Code 59), finance,
insurance, and real estate (Codes 60-67), personal services (Code
72), business services (Code 73), motion pictures (Code 78) except
motion picture production and allied services (Code 781), legal
services (Code 81), educational services (Code 82), social services
(Code 83), museums, art galleries, and botanical and zoological
gardens (Code 84), membership organizations (Code 86), engineering,
accounting, research, management, and related services (Code 87),
private households (Code 88), and miscellaneous services (Code 89).
To further identify industries that may be included on the list, the
division shall also consider data from a rating organization, as
defined in Section 11750.1 of the Insurance Code, the Division of
Labor Statistics and Research, and all other appropriate information.
The list shall be established by June 30, 1994, and shall be
reviewed, and as necessary revised, biennially.
(3) The division shall prepare a Model Injury and Illness
Prevention Program for Employers in Industries with Intermittent
Employment, and shall determine which industries have historically
utilized seasonal or intermittent employees. An employer in an
industry determined by the division to have historically utilized
seasonal or intermittent employees shall be deemed to have complied
with the requirements of subdivision (a) with respect to a written
injury prevention program if the employer adopts the model program
prepared by the division pursuant to this paragraph and complies with
any instructions relating thereto.
(k) With respect to any county, city, city and county, or
district, or any public or quasi-public corporation or public agency
therein, including any public entity, other than a state agency, that
is a member of, or created by, a joint powers agreement, subdivision
(d) shall not apply.
(l) Every workers' compensation insurer shall conduct a review,
including a written report as specified below, of the injury and
illness prevention program (IIPP) of each of its insureds with an
experience modification of 2.0 or greater within six months of the
commencement of the initial insurance policy term. The review shall
determine whether the insured has implemented all of the required
components of the IIPP, and evaluate their effectiveness. The
training component of the IIPP shall be evaluated to determine
whether training is provided to line employees, supervisors, and
upper level management, and effectively imparts the information and
skills each of these groups needs to ensure that all of the insured's
specific health and safety issues are fully addressed by the
insured. The reviewer shall prepare a detailed written report
specifying the findings of the review and all recommended changes
deemed necessary to make the IIPP effective. The reviewer shall be or
work under the direction of a licensed California professional
engineer, certified safety professional, or a certified industrial
hygienist.
6402. No employer shall require, or permit any employee to go or be
in any employment or place of employment which is not safe and
healthful.
6403. No employer shall fail or neglect to do any of the following:
(a) To provide and use safety devices and safeguards reasonably
adequate to render the employment and place of employment safe.
(b) To adopt and use methods and processes reasonably adequate to
render the employment and place of employment safe.
(c) To do every other thing reasonably necessary to protect the
life, safety, and health of employees.
6404. No employer shall occupy or maintain any place of employment
that is not safe and healthful.
6404.5. (a) The Legislature finds and declares that regulation of
smoking in the workplace is a matter of statewide interest and
concern. It is the intent of the Legislature in enacting this section
to prohibit the smoking of tobacco products in all (100 percent of)
enclosed places of employment in this state, as covered by this
section, thereby eliminating the need of local governments to enact
workplace smoking restrictions within their respective jurisdictions.
It is further the intent of the Legislature to create a uniform
statewide standard to restrict and prohibit the smoking of tobacco
products in enclosed places of employment, as specified in this
section, in order to reduce employee exposure to environmental
tobacco smoke to a level that will prevent anything other than
insignificantly harmful effects to exposed employees, and also to
eliminate the confusion and hardship that can result from enactment
or enforcement of disparate local workplace smoking restrictions.
Notwithstanding any other provision of this section, it is the intent
of the Legislature that any area not defined as a "place of
employment" pursuant to subdivision (d) or in which the smoking of
tobacco products is not regulated pursuant to subdivision (e) shall
be subject to local regulation of smoking of tobacco products.
(b) No employer shall knowingly or intentionally permit, and no
person shall engage in, the smoking of tobacco products in an
enclosed space at a place of employment. "Enclosed space" includes
lobbies, lounges, waiting areas, elevators, stairwells, and restrooms
that are a structural part of the building and not specifically
defined in subdivision (d).
(c) For purposes of this section, an employer who permits any
nonemployee access to his or her place of employment on a regular
basis has not acted knowingly or intentionally in violation of this
section if he or she has taken the following reasonable steps to
prevent smoking by a nonemployee:
(1) Posted clear and prominent signs, as follows:
(A) Where smoking is prohibited throughout the building or
structure, a sign stating "No smoking" shall be posted at each
entrance to the building or structure.
(B) Where smoking is permitted in designated areas of the building
or structure, a sign stating "Smoking is prohibited except in
designated areas" shall be posted at each entrance to the building or
structure.
(2) Has requested, when appropriate, that a nonemployee who is
smoking refrain from smoking in the enclosed workplace.
For purposes of this subdivision, "reasonable steps" does not
include (A) the physical ejection of a nonemployee from the place of
employment or (B) any requirement for making a request to a
nonemployee to refrain from smoking, under circumstances involving a
risk of physical harm to the employer or any employee.
(d) For purposes of this section, "place of employment" does not
include any of the following:
(1) Sixty-five percent of the guestroom accommodations in a hotel,
motel, or similar transient lodging establishment.
(2) Areas of the lobby in a hotel, motel, or other similar
transient lodging establishment designated for smoking by the
establishment. An establishment may permit smoking in a designated
lobby area that does not exceed 25 percent of the total floor area of
the lobby or, if the total area of the lobby is 2,000 square feet or
less, that does not exceed 50 percent of the total floor area of the
lobby. For purposes of this paragraph, "lobby" means the common
public area of an establishment in which registration and other
similar or related transactions, or both, are conducted and in which
the establishment's guests and members of the public typically
congregate.
(3) Meeting and banquet rooms in a hotel, motel, other transient
lodging establishment similar to a hotel or motel, restaurant, or
public convention center, except while food or beverage functions are
taking place, including setup, service, and cleanup activities, or
when the room is being used for exhibit purposes. At times when
smoking is not permitted in a meeting or banquet room pursuant to
this paragraph, the establishment may permit smoking in corridors and
prefunction areas adjacent to and serving the meeting or banquet
room if no employee is stationed in that corridor or area on other
than a passing basis.
(4) Retail or wholesale tobacco shops and private smokers'
lounges. For purposes of this paragraph:
(A) "Private smokers' lounge" means any enclosed area in or
attached to a retail or wholesale tobacco shop that is dedicated to
the use of tobacco products, including, but not limited to, cigars
and pipes.
(B) "Retail or wholesale tobacco shop" means any business
establishment the main purpose of which is the sale of tobacco
products, including, but not limited to, cigars, pipe tobacco, and
smoking accessories.
(5) Cabs of motortrucks, as defined in Section 410 of the Vehicle
Code, or truck tractors, as defined in Section 655 of the Vehicle
Code, if no nonsmoking employees are present.
(6) Warehouse facilities. For purposes of this paragraph,
"warehouse facility" means a warehouse facility with more than
100,000 square feet of total floorspace, and 20 or fewer full-time
employees working at the facility, but does not include any area
within a facility that is utilized as office space.
(7) Gaming clubs, in which smoking is permitted by subdivision
(f). For purposes of this paragraph, "gaming club" means any gaming
club, as defined in Section 19802 of the Business and Professions
Code, or bingo facility, as defined in Section 326.5 of the Penal
Code, that restricts access to minors under 18 years of age.
(8) Bars and taverns, in which smoking is permitted by subdivision
(f). For purposes of this paragraph, "bar" or "tavern" means a
facility primarily devoted to the serving of alcoholic beverages for
consumption by guests on the premises, in which the serving of food
is incidental. "Bar or tavern" includes those facilities located
within a hotel, motel, or other similar transient occupancy
establishment. However, when located within a building in conjunction
with another use, including a restaurant, "bar" or "tavern" includes
only those areas used primarily for the sale and service of
alcoholic beverages. "Bar" or "tavern" does not include the dining
areas of a restaurant, regardless of whether alcoholic beverages are
served therein.
(9) Theatrical production sites, if smoking is an integral part of
the story in the theatrical production.
(10) Medical research or treatment sites, if smoking is integral
to the research and treatment being conducted.
(11) Private residences, except for private residences licensed as
family day care homes, during the hours of operation as family day
care homes and in those areas where children are present.
(12) Patient smoking areas in long-term health care facilities, as
defined in Section 1418 of the Health and Safety Code.
(13) Breakrooms designated by employers for smoking, provided that
all of the following conditions are met:
(A) Air from the smoking room shall be exhausted directly to the
outside by an exhaust fan. Air from the smoking room shall not be
recirculated to other parts of the building.
(B) The employer shall comply with any ventilation standard or
other standard utilizing appropriate technology, including, but not
limited to, mechanical, electronic, and biotechnical systems, adopted
by the Occupational Safety and Health Standards Board or the federal
Environmental Protection Agency. If both adopt inconsistent
standards, the ventilation standards of the Occupational Safety and
Health Standards Board shall be no less stringent than the standards
adopted by the federal Environmental Protection Agency.
(C) The smoking room shall be located in a nonwork area where no
one, as part of his or her work responsibilities, is required to
enter. For purposes of this subparagraph, "work responsibilities"
does not include any custodial or maintenance work carried out in the
breakroom when it is unoccupied.
(D) There are sufficient nonsmoking breakrooms to accommodate
nonsmokers.
(14) Employers with a total of five or fewer employees, either
full time or part time, may permit smoking where all of the following
conditions are met:
(A) The smoking area is not accessible to minors.
(B) All employees who enter the smoking area consent to permit
smoking. No one, as part of his or her work responsibilities, shall
be required to work in an area where smoking is permitted. An
employer who is determined by the division to have used coercion to
obtain consent or who has required an employee to work in the smoking
area shall be subject to the penalty provisions of Section 6427.
(C) Air from the smoking area shall be exhausted directly to the
outside by an exhaust fan. Air from the smoking area shall not be
recirculated to other parts of the building.
(D) The employer shall comply with any ventilation standard or
other standard utilizing appropriate technology, including, but not
limited to, mechanical, electronic, and biotechnical systems, adopted
by the Occupational Safety and Health Standards Board or the federal
Environmental Protection Agency. If both adopt inconsistent
standards, the ventilation standards of the Occupational Safety and
Health Standards Board shall be no less stringent than the standards
adopted by the federal Environmental Protection Agency.
This paragraph shall not be construed to (i) supersede or render
inapplicable any condition or limitation on smoking areas made
applicable to specific types of business establishments by any other
paragraph of this subdivision or (ii) apply in lieu of any otherwise
applicable paragraph of this subdivision that has become inoperative.
(e) Paragraphs (13) and (14) of subdivision (d) shall not be
construed to require employers to provide reasonable accommodation to
smokers, or to provide breakrooms for smokers or nonsmokers.
(f) (1) Except as otherwise provided in this subdivision, smoking
may be permitted in gaming clubs, as defined in paragraph (7) of
subdivision (d), and in bars and taverns, as defined in paragraph (8)
of subdivision (d), until the earlier of the following:
(A) January 1, 1998.
(B) The date of adoption of a regulation (i) by the Occupational
Safety and Health Standards Board reducing the permissible employee
exposure level to environmental tobacco smoke to a level that will
prevent anything other than insignificantly harmful effects to
exposed employees or (ii) by the federal Environmental Protection
Agency establishing a standard for reduction of permissible exposure
to environmental tobacco smoke to an exposure level that will prevent
anything other than insignificantly harmful effects to exposed
persons.
(2) If a regulation specified in subparagraph (B) of paragraph (1)
is adopted on or before January 1, 1998, smoking may thereafter be
permitted in gaming clubs and in bars and taverns, subject to full
compliance with, or conformity to, the standard in the regulation
within two years following the date of adoption of the regulation. An
employer failing to achieve compliance with, or conformity to, the
regulation within this two-year period shall prohibit smoking in the
gaming club, bar, or tavern until compliance or conformity is
achieved. If the Occupational Safety and Health Standards Board and
the federal Environmental Protection Agency both adopt regulations
specified in subparagraph (B) of paragraph (1) that are inconsistent,
the regulations of the Occupational Safety and Health Standards
Board shall be no less stringent than the regulations of the federal
Environmental Protection Agency.
(3) If a regulation specified in subparagraph (B) of paragraph (1)
is not adopted on or before January 1, 1998, the exemptions
specified in paragraphs (7) and (8) of subdivision (d) shall become
inoperative on and after January 1, 1998, until a regulation is
adopted. Upon adoption of such a regulation on or after January 1,
1998, smoking may thereafter be permitted in gaming clubs and in bars
and taverns, subject to full compliance with, or conformity to, the
standard in the regulation within two years following the date of
adoption of the regulation. An employer failing to achieve compliance
with, or conformity to, the regulation within this two-year period
shall prohibit smoking in the gaming club, bar, or tavern until
compliance or conformity is achieved. If the Occupational Safety and
Health Standards Board and the federal Environmental Protection
Agency both adopt regulations specified in subparagraph (B) of
paragraph (1) that are inconsistent, the regulations of the
Occupational Safety and Health Standards Board shall be no less
stringent than the regulations of the federal Environmental
Protection Agency.
(4) From January 1, 1997, to December 31, 1997, inclusive, smoking
may be permitted in gaming clubs, as defined in paragraph (7) of
subdivision (d), and in bars and taverns, as defined in paragraph (8)
of subdivision (d), subject to both of the following conditions:
(A) If practicable, the gaming club or bar or tavern shall
establish a designated nonsmoking area.
(B) If feasible, no employee shall be required, in the performance
of ordinary work responsibilities, to enter any area in which
smoking is permitted.
(g) The smoking prohibition set forth in this section shall
constitute a uniform statewide standard for regulating the smoking of
tobacco products in enclosed places of employment and shall
supersede and render unnecessary the local enactment or enforcement
of local ordinances regulating the smoking of tobacco products in
enclosed places of employment. Insofar as the smoking prohibition set
forth in this section is applicable to all (100-percent) places of
employment within this state and, therefore, provides the maximum
degree of coverage, the practical effect of this section is to
eliminate the need of local governments to enact enclosed workplace
smoking restrictions within their respective jurisdictions.
(h) Nothing in this section shall prohibit an employer from
prohibiting smoking in an enclosed place of employment for any
reason.
(i) The enactment of local regulation of smoking of tobacco
products in enclosed places of employment by local governments shall
be suspended only for as long as, and to the extent that, the
(100-percent) smoking prohibition provided for in this section
remains in effect. In the event this section is repealed or modified
by subsequent legislative or judicial action so that the
(100-percent) smoking prohibition is no longer applicable to all
enclosed places of employment in California, local governments shall
have the full right and authority to enforce previously enacted, and
to enact and enforce new, restrictions on the smoking of tobacco
products in enclosed places of employment within their jurisdictions,
including a complete prohibition of smoking. Notwithstanding any
other provision of this section, any area not defined as a "place of
employment" or in which smoking is not regulated pursuant to
subdivision (d) or (e), shall be subject to local regulation of
smoking of tobacco products.
(j) Any violation of the prohibition set forth in subdivision (b)
is an infraction, punishable by a fine not to exceed one hundred
dollars ($100) for a first violation, two hundred dollars ($200) for
a second violation within one year, and five hundred dollars ($500)
for a third and for each subsequent violation within one year. This
subdivision shall be enforced by local law enforcement agencies,
including, but not limited to, local health departments, as
determined by the local governing body.
(k) Notwithstanding Section 6309, the division shall not be
required to respond to any complaint regarding the smoking of tobacco
products in an enclosed space at a place of employment, unless the
employer has been found guilty pursuant to subdivision (j) of a third
violation of subdivision (b) within the previous year.
(l) If any provision of this act or the application thereof to any
person or circumstances is held invalid, that invalidity shall not
affect other provisions or applications of the act that can be given
effect without the invalid provision or application, and to this end
the provisions of this act are severable.
6405. No employer, owner, or lessee of any real property shall
construct or cause to be constructed any place of employment that is
not safe and healthful.
6406. No person shall do any of the following:
(a) Remove, displace, damage, destroy or carry off any safety
device, safeguard, notice, or warning, furnished for use in any
employment or place of employment.
(b) Interfere in any way with the use thereof by any other person.
(c) Interfere with the use of any method or process adopted for
the protection of any employee, including himself, in such
employment, or place of employment.
(d) Fail or neglect to do every other thing reasonably necessary
to protect the life, safety, and health of employees.
6407. Every employer and every employee shall comply with
occupational safety and health standards, with Section 25910 of the
Health and Safety Code, and with all rules, regulations, and orders
pursuant to this division which are applicable to his own actions and
conduct.
6408. All employers shall provide information to employees in the
following ways, as prescribed by authorized regulations:
(a) Posting of information regarding protections and obligations
of employees under occupational safety and health laws.
(b) Posting prominently each citation issued under Section 6317,
or a copy or copies thereof, at or near each place a violation
referred to in the notice of violation occurred.
(c) The opportunity for employees or their representatives to
observe monitoring or measuring of employee exposure to hazards
conducted pursuant to standards promulgated under Section 142.3.
(d) Allow access by employees or their representatives to accurate
records of employee exposures to potentially toxic materials or
harmful physical agents.
(e) Notification of any employee who has been or is being exposed
to toxic materials or harmful physical agents in concentrations or at
levels exceeding those prescribed by an applicable standard, order,
or special order, and informing any employee so exposed of corrective
action being taken.
6409. (a) Every physician as defined in Section 3209.3 who attends
any injured employee shall file a complete report of every
occupational injury or occupational illness to the employee with the
employer, or if insured, with the employer's insurer, on forms
prescribed for that purpose by the Division of Labor Statistics and
Research. A portion of the form shall be completed by the injured
employee, if he or she is able to do so, describing how the injury or
illness occurred. The form shall be filed within five days of the
initial examination. Inability or failure of an injured employee to
complete his or her portion of the form shall not affect the employee'
s rights under this code, and shall not excuse any delay in filing
the form. The employer or insurer, as the case may be, shall file the
physician's report with the Department of Industrial Relations,
through its Division of Labor Statistics and Research, within five
days of receipt. Each report of occupational injury or occupational
illness shall indicate the social security number of the injured
employee. If the treatment is for pesticide poisoning or a condition
suspected to be pesticide poisoning, the physician shall also file a
complete report, which need not include the affidavit required
pursuant to this section, with the Division of Labor Statistics and
Research, and within 24 hours of the initial examination shall file a
complete report with the local health officer by facsimile
transmission or other means. If the treatment is for pesticide
poisoning or a condition suspected to be pesticide poisoning, the
physician shall not be compensated for the initial diagnosis and
treatment unless the report is filed with the employer, or if
insured, with the employer's insurer, and includes or is accompanied
by a signed affidavit which certifies that a copy of the report was
filed with the local health officer pursuant to the requirements of
this section.
(b) As used in this section, "occupational illness" means any
abnormal condition or disorder caused by exposure to environmental
factors associated with employment, including acute and chronic
illnesses or diseases which may be caused by inhalation, absorption,
ingestion, or direct contact.
6409.1. (a) Every employer shall file a complete report of every
occupational injury or occupational illness, as defined in
subdivision (b) of Section 6409, to each employee which results in
lost time beyond the date of the injury or illness, or which requires
medical treatment beyond first aid. An insured employer shall file
the report with the insurer on a form prescribed by the
Administrative Director of the Division of Workers' Compensation for
that purpose within five days after the employer obtains knowledge of
the injury or illness that has, or is alleged to have, arisen out of
and in the course of employment. A self-insured employer, the state,
or the insurer of an insured employer shall file the report in the
electronic form prescribed for that purpose by the administrative
director pursuant to Section 138.6 within the time prescribed by the
administrative director. The administrative director shall ensure
that the report required by this subdivision contains necessary
information to continue to be acceptable as substitute documentation
for purposes of recordkeeping required under the federal Occupational
Safety and Health Act of 1970 (29 U.S.C. Sec. 651 et seq.). Each
report of occupational injury or occupational illness shall indicate
the social security number of the injured employee. In the event an
employer has filed a report of injury or illness pursuant to this
subdivision and the employee subsequently dies as a result of the
reported injury or illness, the employer shall file an amended report
indicating the death with the Department of Industrial Relations,
through its Division of Workers' Compensation or, if an insured
employer, with the insurer, within five days after the employer is
notified or learns of the death. A copy of any amended reports
received by the insurer shall be filed with the Division of Workers'
Compensation in electronic form as prescribed by the administrative
director.
(b) In every case involving a serious injury or illness, or death,
in addition to the report required by subdivision (a), a report
shall be made immediately by the employer to the Division of
Occupational Safety and Health by telephone or telegraph. An employer
who violates this subdivision may be assessed a civil penalty of not
less than five thousand dollars ($5,000). Nothing in this
subdivision shall be construed to increase the maximum civil penalty,
pursuant to Sections 6427 to 6430, inclusive, that may be imposed
for a violation of this section.
6409.2. Whenever a state, county, or local fire or police agency is
called to an accident involving an employee covered by this part in
which a serious injury or illness, or death occurs, the responding
agency shall immediately notify the nearest office of the Division of
Occupational Safety and Health by telephone. Thereafter, the
division shall immediately notify the appropriate prosecuting
authority of the accident.
6409.3. In no case shall the treatment administered for pesticide
poisoning or a condition suspected as pesticide poisoning be deemed
to be first aid treatment.
6409.5. (a) Whenever any local public fire agency has knowledge
that a place of employment where garment manufacturing operations
take place contains fire or safety hazards for which fire and injury
prevention measures have not been taken in accordance with local fire
and life safety ordinances, the agency may notify the Division of
Occupational Safety and Health. This referral shall be made only
after the garment manufacturing employer has been given a reasonable
amount of time to correct violations.
(b) Whenever the Division of Occupational Safety and Health has
knowledge or reasonable suspicion that a place of employment where
garment manufacturing operations take place contains fire or safety
hazards for which fire and injury prevention measures have not been
taken in accordance with local fire and life safety ordinances, the
division shall notify the appropriate local public fire agency.
(c) Whenever the Division of Occupational Safety and Health
receives a referral by a local public fire agency pursuant to
subdivision (a) which informs the division that a place of employment
where garment manufacturing operations take place is not safe or is
injurious to the welfare of any employee, it shall constitute a
complaint for purposes of Section 6309 and shall be investigated.
(d) Whenever a local public fire agency receives a referral by the
Division of Occupational Safety and Health pursuant to subdivision
(b) which informs the local public fire agency that a place of
employment where garment manufacturing operations take place is not
safe or is injurious to the welfare of any employee, the local public
fire agency may investigate the referral at its discretion.
(e) (1) If the Division of Occupational Safety and Health acquires
knowledge that the garment manufacturing employer is not currently
registered, it shall notify the Division of Labor Standards
Enforcement.
(2) Local public fire agencies may make referrals of individuals
not registered as garment manufacturers to the Division of Labor
Standards Enforcement.
(3) Whenever the Division of Labor Standards Enforcement is
informed by the Division of Occupational Safety and Health or by a
local public fire agency that a garment manufacturing employer is
unregistered, the Division of Labor Standards Enforcement shall take
measures it deems appropriate to obtain compliance.
6410. The reports required by subdivision (a) of Section 6409 and
Section 6413 shall be made in the form and detail and within the time
limits prescribed by reasonable rules and regulations adopted by the
Division of Labor Statistics and Research in accordance with Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code.
Nothing in this chapter requiring recordkeeping and reporting by
employers shall relieve the employer of maintaining records and
making reports to the assistant secretary, United States Department
of Labor, as required under the Federal Occupational Safety and
Health Act of 1970 (P.L. 91-596). The Division of Labor Statistics
and Research shall prescribe and provide the forms necessary for
maintenance of the required records, and the Division of Occupational
Safety and Health shall enforce by citation and penalty assessment
any violation of the recordkeeping requirements of this chapter.
All state and local government employers shall maintain records
and make reports in the same manner and to the same extent as
required of other employers by this section.
6410.5. The reports required by subdivision (a) of Section 6409,
subdivision (a) of Section 6409.1, and Section 6413 shall contain,
prominently stated, the statement set forth in Section 5401.7.
6411. Every employer or insurer receiving forms with directions
from the Division of Labor Statistics and Research to complete them
shall cause them to be properly filled out so as to answer fully and
correctly each question propounded therein. In case of inability to
answer any such questions, a good and sufficient reason shall be
given for such failure.
6412. No report of injury or illness required by subdivision (a) of
Section 6409.1 shall be open to public inspection or made public,
nor shall those reports be admissible as evidence in any adversary
proceeding before the Workers' Compensation Appeals Board. However,
the reports required of physicians by subdivision (a) of Section 6409
shall be admissible as evidence in the proceeding, except that no
physician's report shall be admissible as evidence to bar proceedings
for the collection of compensation, and the portion of any physician'
s report completed by an employee shall not be admissible as evidence
in any proceeding before the Workers' Compensation Appeals Board.
6413. (a) The Department of Corrections, and every physician or
surgeon who attends any injured state prisoner, shall file with the
Division of Labor Statistics and Research a complete report, on forms
prescribed under Sections 6409 and 6409.1, of every injury to each
state prisoner, resulting from any labor performed by the prisoner
unless disability resulting from such injury does not last through
the day or does not require medical service other than ordinary first
aid treatment.
(b) Where the injury results in death a report, in addition to the
report required by subdivision (a), shall forthwith be made by the
Department of Corrections to the Division of Labor Statistics and
Research by telephone or telegraph.
(c) Except as provided in Section 6304.2, nothing in this section
or in this code shall be deemed to make a prisoner an employee, for
any purpose, of the Department of Corrections.
(d) Notwithstanding subdivision (a), no physician or surgeon who
attends any injured state prisoner outside of a Department of
Corrections institution shall be required to file the report required
by subdivision (a), but the Department of Corrections shall file the
report.
6413.2. (a) The Division of Labor Statistics and Research shall,
within five working days of their receipt, transmit to the Division
of Occupational Safety and Health copies of all reports received by
the Division of Labor Statistics and Research pursuant to Section
6413.
(b) With regard to any report required by Section 6413, the
Division of Occupational Safety and Health may make recommendations
to the Department of Corrections of ways in which the department
might improve the safety of the working conditions and work areas of
state prisoners, and other safety matters. The Department of
Corrections shall not be required to comply with these
recommendations.
(c) With regard to any report required by Section 6413, the
Division of Occupational Safety and Health may, in any case in which
the Department of Corrections has not complied with recommendations
made by the division pursuant to subdivision (b), or in any other
case in which the division deems the safety of any state prisoner
shall require it, conduct hearings and, after these hearings, adopt
special orders, rules, or regulations or otherwise proceed as
authorized in Chapter 1 (commencing with Section 6300) of this part
as it deems necessary. The Department of Corrections shall comply
with any order, rule, or regulation so adopted by the Division of
Occupational Safety and Health.
6413.5. Any employer or physician who fails to comply with any
provision of subdivision (a) of Section 6409, or Section 6409.1,
6409.2, 6409.3, or 6410 may be assessed a civil penalty of not less
than fifty dollars ($50) nor more than two hundred dollars ($200) by
the director or his or her designee if he or she finds a pattern or
practice of violations, or a willful violation of any of these
provisions. Penalty assessments may be contested in the manner
provided in Section 3725. Penalties assessed pursuant to this section
shall be deposited in the General Fund.
6400. (a) Every employer shall furnish employment and a place of
employment that is safe and healthful for the employees therein.
(b) On multiemployer worksites, both construction and
nonconstruction, citations may be issued only to the following
categories of employers when the division has evidence that an
employee was exposed to a hazard in violation of any requirement
enforceable by the division:
(1) The employer whose employees were exposed to the hazard (the
exposing employer).
(2) The employer who actually created the hazard (the creating
employer).
(3) The employer who was responsible, by contract or through
actual practice, for safety and health conditions on the worksite,
which is the employer who had the authority for ensuring that the
hazardous condition is corrected (the controlling employer).
(4) The employer who had the responsibility for actually
correcting the hazard (the correcting employer).
The employers listed in paragraphs (2) to (4), inclusive, of this
subdivision may be cited regardless of whether their own employees
were exposed to the hazard.
(c) It is the intent of the Legislature, in adding subdivision (b)
to this section, to codify existing regulations with respect to the
responsibility of employers at multiemployer worksites. Subdivision
(b) of this section is declaratory of existing law and shall not be
construed or interpreted as creating a new law or as modifying or
changing an existing law.
6401. Every employer shall furnish and use safety devices and
safeguards, and shall adopt and use practices, means, methods,
operations, and processes which are reasonably adequate to render
such employment and place of employment safe and healthful. Every
employer shall do every other thing reasonably necessary to protect
the life, safety, and health of employees.
6401.5. No salvage of materials shall be permitted while demolition
is in progress on any building, structure, falsework, or scaffold
more than three stories high or the equivalent height for which a
permit is required under subdivision (c) of Section 6500.
For this purpose salvage does not include removal of material from
premises solely for the purpose of clearing the area to facilitate
the continuation of the demolition.
6401.7. (a) Every employer shall establish, implement, and maintain
an effective injury prevention program. The program shall be
written, except as provided in subdivision (e), and shall include,
but not be limited to, the following elements:
(1) Identification of the person or persons responsible for
implementing the program.
(2) The employer's system for identifying and evaluating workplace
hazards, including scheduled periodic inspections to identify unsafe
conditions and work practices.
(3) The employer's methods and procedures for correcting unsafe or
unhealthy conditions and work practices in a timely manner.
(4) An occupational health and safety training program designed to
instruct employees in general safe and healthy work practices and to
provide specific instruction with respect to hazards specific to
each employee's job assignment.
(5) The employer's system for communicating with employees on
occupational health and safety matters, including provisions designed
to encourage employees to inform the employer of hazards at the
worksite without fear of reprisal.
(6) The employer's system for ensuring that employees comply with
safe and healthy work practices, which may include disciplinary
action.
(b) The employer shall correct unsafe and unhealthy conditions and
work practices in a timely manner based on the severity of the
hazard.
(c) The employer shall train all employees when the training
program is first established, all new employees, and all employees
given a new job assignment, and shall train employees whenever new
substances, processes, procedures, or equipment are introduced to the
workplace and represent a new hazard, and whenever the employer
receives notification of a new or previously unrecognized hazard.
Beginning January 1, 1994, an employer in the construction industry
who is required to be licensed under Chapter 9 (commencing with
Section 7000) of Division 3 of the Business and Professions Code may
use employee training provided to the employer's employees under a
construction industry occupational safety and health training program
approved by the division to comply with the requirements of
subdivision (a) relating to employee training, and shall only be
required to provide training on hazards specific to an employee's job
duties.
(d) The employer shall keep appropriate records of steps taken to
implement and maintain the program. Beginning January 1, 1994, an
employer in the construction industry who is required to be licensed
under Chapter 9 (commencing with Section 7000) of Division 3 of the
Business and Professions Code may use records relating to employee
training provided to the employer in connection with an occupational
safety and health training program approved by the division to comply
with the requirements of this subdivision, and shall only be
required to keep records of those steps taken to implement and
maintain the program with respect to hazards specific to an employee'
s job duties.
(e) (1) The standards board shall adopt a standard setting forth
the employer's duties under this section, on or before January 1,
1991, consistent with the requirements specified in subdivisions (a),
(b), (c), and (d). The standards board, in adopting the standard,
shall include substantial compliance criteria for use in evaluating
an employer's injury prevention program. The board may adopt less
stringent criteria for employers with few employees and for employers
in industries with insignificant occupational safety or health
hazards.
(2) Notwithstanding subdivision (a), for employers with fewer than
20 employees who are in industries that are not on a designated list
of high hazard industries and who have a workers' compensation
experience modification rate of 1.1 or less, and for any employers
with fewer than 20 employees who are in industries that are on a
designated list of low hazard industries, the board shall adopt a
standard setting forth the employer's duties under this section
consistent with the requirements specified in subdivisions (a), (b),
and (c), except that the standard shall only require written
documentation to the extent of documenting the person or persons
responsible for implementing the program pursuant to paragraph (1) of
subdivision (a), keeping a record of periodic inspections pursuant
to paragraph (2) of subdivision (a), and keeping a record of employee
training pursuant to paragraph (4) of subdivision (a). To any extent
beyond the specifications of this subdivision, the standard shall
not require the employer to keep the records specified in subdivision
(d).
(3) The division shall establish a list of high hazard industries
using the methods prescribed in Section 6314.1 for identifying and
targeting employers in high hazard industries. For purposes of this
subdivision, the "designated list of high hazard industries" shall be
the list established pursuant to this paragraph.
For the purpose of implementing this subdivision, the Department
of Industrial Relations shall periodically review, and as necessary
revise, the list.
(4) For the purpose of implementing this subdivision, the
Department of Industrial Relations shall also establish a list of low
hazard industries, and shall periodically review, and as necessary
revise, that list.
(f) The standard adopted pursuant to subdivision (e) shall
specifically permit employer and employee occupational safety and
health committees to be included in the employer's injury prevention
program. The board shall establish criteria for use in evaluating
employer and employee occupational safety and health committees. The
criteria shall include minimum duties, including the following:
(1) Review of the employer's (A) periodic, scheduled worksite
inspections, (B) investigation of causes of incidents resulting in
injury, illness, or exposure to hazardous substances, and (C)
investigation of any alleged hazardous condition brought to the
attention of any committee member. When determined necessary by the
committee, the committee may conduct its own inspections and
investigations.
(2) Upon request from the division, verification of abatement
action taken by the employer as specified in division citations.
If an employer's occupational safety and health committee meets
the criteria established by the board, it shall be presumed to be in
substantial compliance with paragraph (5) of subdivision (a).
(g) The division shall adopt regulations specifying the procedures
for selecting employee representatives for employer-employee
occupational health and safety committees when these procedures are
not specified in an applicable collective bargaining agreement. No
employee or employee organization shall be held liable for any act or
omission in connection with a health and safety committee.
(h) The employer's injury prevention program, as required by this
section, shall cover all of the employer's employees and all other
workers who the employer controls or directs and directly supervises
on the job to the extent these workers are exposed to worksite and
job assignment specific hazards. Nothing in this subdivision shall
affect the obligations of a contractor or other employer that
controls or directs and directly supervises its own employees on the
job.
(i) When a contractor supplies its employee to a state agency
employer on a temporary basis, the state agency employer may assess a
fee upon the contractor to reimburse the state agency for the
additional costs, if any, of including the contract employee within
the state agency's injury prevention program.
(j) (1) The division shall prepare a Model Injury and Illness
Prevention Program for Non-High-Hazard Employment, and shall make
copies of the model program prepared pursuant to this subdivision
available to employers, upon request, for posting in the workplace.
An employer who adopts and implements the model program prepared by
the division pursuant to this paragraph in good faith shall not be
assessed a civil penalty for the first citation for a violation of
this section issued after the employer's adoption and implementation
of the model program.
(2) For purposes of this subdivision, the division shall establish
a list of non-high-hazard industries in California. These
industries, identified by their Standard Industrial Classification
Codes, as published by the United States Office of Management and
Budget in the Manual of Standard Industrial Classification Codes,
1987 Edition, are apparel and accessory stores (Code 56), eating and
drinking places (Code 58), miscellaneous retail (Code 59), finance,
insurance, and real estate (Codes 60-67), personal services (Code
72), business services (Code 73), motion pictures (Code 78) except
motion picture production and allied services (Code 781), legal
services (Code 81), educational services (Code 82), social services
(Code 83), museums, art galleries, and botanical and zoological
gardens (Code 84), membership organizations (Code 86), engineering,
accounting, research, management, and related services (Code 87),
private households (Code 88), and miscellaneous services (Code 89).
To further identify industries that may be included on the list, the
division shall also consider data from a rating organization, as
defined in Section 11750.1 of the Insurance Code, the Division of
Labor Statistics and Research, and all other appropriate information.
The list shall be established by June 30, 1994, and shall be
reviewed, and as necessary revised, biennially.
(3) The division shall prepare a Model Injury and Illness
Prevention Program for Employers in Industries with Intermittent
Employment, and shall determine which industries have historically
utilized seasonal or intermittent employees. An employer in an
industry determined by the division to have historically utilized
seasonal or intermittent employees shall be deemed to have complied
with the requirements of subdivision (a) with respect to a written
injury prevention program if the employer adopts the model program
prepared by the division pursuant to this paragraph and complies with
any instructions relating thereto.
(k) With respect to any county, city, city and county, or
district, or any public or quasi-public corporation or public agency
therein, including any public entity, other than a state agency, that
is a member of, or created by, a joint powers agreement, subdivision
(d) shall not apply.
(l) Every workers' compensation insurer shall conduct a review,
including a written report as specified below, of the injury and
illness prevention program (IIPP) of each of its insureds with an
experience modification of 2.0 or greater within six months of the
commencement of the initial insurance policy term. The review shall
determine whether the insured has implemented all of the required
components of the IIPP, and evaluate their effectiveness. The
training component of the IIPP shall be evaluated to determine
whether training is provided to line employees, supervisors, and
upper level management, and effectively imparts the information and
skills each of these groups needs to ensure that all of the insured's
specific health and safety issues are fully addressed by the
insured. The reviewer shall prepare a detailed written report
specifying the findings of the review and all recommended changes
deemed necessary to make the IIPP effective. The reviewer shall be or
work under the direction of a licensed California professional
engineer, certified safety professional, or a certified industrial
hygienist.
6402. No employer shall require, or permit any employee to go or be
in any employment or place of employment which is not safe and
healthful.
6403. No employer shall fail or neglect to do any of the following:
(a) To provide and use safety devices and safeguards reasonably
adequate to render the employment and place of employment safe.
(b) To adopt and use methods and processes reasonably adequate to
render the employment and place of employment safe.
(c) To do every other thing reasonably necessary to protect the
life, safety, and health of employees.
6404. No employer shall occupy or maintain any place of employment
that is not safe and healthful.
6404.5. (a) The Legislature finds and declares that regulation of
smoking in the workplace is a matter of statewide interest and
concern. It is the intent of the Legislature in enacting this section
to prohibit the smoking of tobacco products in all (100 percent of)
enclosed places of employment in this state, as covered by this
section, thereby eliminating the need of local governments to enact
workplace smoking restrictions within their respective jurisdictions.
It is further the intent of the Legislature to create a uniform
statewide standard to restrict and prohibit the smoking of tobacco
products in enclosed places of employment, as specified in this
section, in order to reduce employee exposure to environmental
tobacco smoke to a level that will prevent anything other than
insignificantly harmful effects to exposed employees, and also to
eliminate the confusion and hardship that can result from enactment
or enforcement of disparate local workplace smoking restrictions.
Notwithstanding any other provision of this section, it is the intent
of the Legislature that any area not defined as a "place of
employment" pursuant to subdivision (d) or in which the smoking of
tobacco products is not regulated pursuant to subdivision (e) shall
be subject to local regulation of smoking of tobacco products.
(b) No employer shall knowingly or intentionally permit, and no
person shall engage in, the smoking of tobacco products in an
enclosed space at a place of employment. "Enclosed space" includes
lobbies, lounges, waiting areas, elevators, stairwells, and restrooms
that are a structural part of the building and not specifically
defined in subdivision (d).
(c) For purposes of this section, an employer who permits any
nonemployee access to his or her place of employment on a regular
basis has not acted knowingly or intentionally in violation of this
section if he or she has taken the following reasonable steps to
prevent smoking by a nonemployee:
(1) Posted clear and prominent signs, as follows:
(A) Where smoking is prohibited throughout the building or
structure, a sign stating "No smoking" shall be posted at each
entrance to the building or structure.
(B) Where smoking is permitted in designated areas of the building
or structure, a sign stating "Smoking is prohibited except in
designated areas" shall be posted at each entrance to the building or
structure.
(2) Has requested, when appropriate, that a nonemployee who is
smoking refrain from smoking in the enclosed workplace.
For purposes of this subdivision, "reasonable steps" does not
include (A) the physical ejection of a nonemployee from the place of
employment or (B) any requirement for making a request to a
nonemployee to refrain from smoking, under circumstances involving a
risk of physical harm to the employer or any employee.
(d) For purposes of this section, "place of employment" does not
include any of the following:
(1) Sixty-five percent of the guestroom accommodations in a hotel,
motel, or similar transient lodging establishment.
(2) Areas of the lobby in a hotel, motel, or other similar
transient lodging establishment designated for smoking by the
establishment. An establishment may permit smoking in a designated
lobby area that does not exceed 25 percent of the total floor area of
the lobby or, if the total area of the lobby is 2,000 square feet or
less, that does not exceed 50 percent of the total floor area of the
lobby. For purposes of this paragraph, "lobby" means the common
public area of an establishment in which registration and other
similar or related transactions, or both, are conducted and in which
the establishment's guests and members of the public typically
congregate.
(3) Meeting and banquet rooms in a hotel, motel, other transient
lodging establishment similar to a hotel or motel, restaurant, or
public convention center, except while food or beverage functions are
taking place, including setup, service, and cleanup activities, or
when the room is being used for exhibit purposes. At times when
smoking is not permitted in a meeting or banquet room pursuant to
this paragraph, the establishment may permit smoking in corridors and
prefunction areas adjacent to and serving the meeting or banquet
room if no employee is stationed in that corridor or area on other
than a passing basis.
(4) Retail or wholesale tobacco shops and private smokers'
lounges. For purposes of this paragraph:
(A) "Private smokers' lounge" means any enclosed area in or
attached to a retail or wholesale tobacco shop that is dedicated to
the use of tobacco products, including, but not limited to, cigars
and pipes.
(B) "Retail or wholesale tobacco shop" means any business
establishment the main purpose of which is the sale of tobacco
products, including, but not limited to, cigars, pipe tobacco, and
smoking accessories.
(5) Cabs of motortrucks, as defined in Section 410 of the Vehicle
Code, or truck tractors, as defined in Section 655 of the Vehicle
Code, if no nonsmoking employees are present.
(6) Warehouse facilities. For purposes of this paragraph,
"warehouse facility" means a warehouse facility with more than
100,000 square feet of total floorspace, and 20 or fewer full-time
employees working at the facility, but does not include any area
within a facility that is utilized as office space.
(7) Gaming clubs, in which smoking is permitted by subdivision
(f). For purposes of this paragraph, "gaming club" means any gaming
club, as defined in Section 19802 of the Business and Professions
Code, or bingo facility, as defined in Section 326.5 of the Penal
Code, that restricts access to minors under 18 years of age.
(8) Bars and taverns, in which smoking is permitted by subdivision
(f). For purposes of this paragraph, "bar" or "tavern" means a
facility primarily devoted to the serving of alcoholic beverages for
consumption by guests on the premises, in which the serving of food
is incidental. "Bar or tavern" includes those facilities located
within a hotel, motel, or other similar transient occupancy
establishment. However, when located within a building in conjunction
with another use, including a restaurant, "bar" or "tavern" includes
only those areas used primarily for the sale and service of
alcoholic beverages. "Bar" or "tavern" does not include the dining
areas of a restaurant, regardless of whether alcoholic beverages are
served therein.
(9) Theatrical production sites, if smoking is an integral part of
the story in the theatrical production.
(10) Medical research or treatment sites, if smoking is integral
to the research and treatment being conducted.
(11) Private residences, except for private residences licensed as
family day care homes, during the hours of operation as family day
care homes and in those areas where children are present.
(12) Patient smoking areas in long-term health care facilities, as
defined in Section 1418 of the Health and Safety Code.
(13) Breakrooms designated by employers for smoking, provided that
all of the following conditions are met:
(A) Air from the smoking room shall be exhausted directly to the
outside by an exhaust fan. Air from the smoking room shall not be
recirculated to other parts of the building.
(B) The employer shall comply with any ventilation standard or
other standard utilizing appropriate technology, including, but not
limited to, mechanical, electronic, and biotechnical systems, adopted
by the Occupational Safety and Health Standards Board or the federal
Environmental Protection Agency. If both adopt inconsistent
standards, the ventilation standards of the Occupational Safety and
Health Standards Board shall be no less stringent than the standards
adopted by the federal Environmental Protection Agency.
(C) The smoking room shall be located in a nonwork area where no
one, as part of his or her work responsibilities, is required to
enter. For purposes of this subparagraph, "work responsibilities"
does not include any custodial or maintenance work carried out in the
breakroom when it is unoccupied.
(D) There are sufficient nonsmoking breakrooms to accommodate
nonsmokers.
(14) Employers with a total of five or fewer employees, either
full time or part time, may permit smoking where all of the following
conditions are met:
(A) The smoking area is not accessible to minors.
(B) All employees who enter the smoking area consent to permit
smoking. No one, as part of his or her work responsibilities, shall
be required to work in an area where smoking is permitted. An
employer who is determined by the division to have used coercion to
obtain consent or who has required an employee to work in the smoking
area shall be subject to the penalty provisions of Section 6427.
(C) Air from the smoking area shall be exhausted directly to the
outside by an exhaust fan. Air from the smoking area shall not be
recirculated to other parts of the building.
(D) The employer shall comply with any ventilation standard or
other standard utilizing appropriate technology, including, but not
limited to, mechanical, electronic, and biotechnical systems, adopted
by the Occupational Safety and Health Standards Board or the federal
Environmental Protection Agency. If both adopt inconsistent
standards, the ventilation standards of the Occupational Safety and
Health Standards Board shall be no less stringent than the standards
adopted by the federal Environmental Protection Agency.
This paragraph shall not be construed to (i) supersede or render
inapplicable any condition or limitation on smoking areas made
applicable to specific types of business establishments by any other
paragraph of this subdivision or (ii) apply in lieu of any otherwise
applicable paragraph of this subdivision that has become inoperative.
(e) Paragraphs (13) and (14) of subdivision (d) shall not be
construed to require employers to provide reasonable accommodation to
smokers, or to provide breakrooms for smokers or nonsmokers.
(f) (1) Except as otherwise provided in this subdivision, smoking
may be permitted in gaming clubs, as defined in paragraph (7) of
subdivision (d), and in bars and taverns, as defined in paragraph (8)
of subdivision (d), until the earlier of the following:
(A) January 1, 1998.
(B) The date of adoption of a regulation (i) by the Occupational
Safety and Health Standards Board reducing the permissible employee
exposure level to environmental tobacco smoke to a level that will
prevent anything other than insignificantly harmful effects to
exposed employees or (ii) by the federal Environmental Protection
Agency establishing a standard for reduction of permissible exposure
to environmental tobacco smoke to an exposure level that will prevent
anything other than insignificantly harmful effects to exposed
persons.
(2) If a regulation specified in subparagraph (B) of paragraph (1)
is adopted on or before January 1, 1998, smoking may thereafter be
permitted in gaming clubs and in bars and taverns, subject to full
compliance with, or conformity to, the standard in the regulation
within two years following the date of adoption of the regulation. An
employer failing to achieve compliance with, or conformity to, the
regulation within this two-year period shall prohibit smoking in the
gaming club, bar, or tavern until compliance or conformity is
achieved. If the Occupational Safety and Health Standards Board and
the federal Environmental Protection Agency both adopt regulations
specified in subparagraph (B) of paragraph (1) that are inconsistent,
the regulations of the Occupational Safety and Health Standards
Board shall be no less stringent than the regulations of the federal
Environmental Protection Agency.
(3) If a regulation specified in subparagraph (B) of paragraph (1)
is not adopted on or before January 1, 1998, the exemptions
specified in paragraphs (7) and (8) of subdivision (d) shall become
inoperative on and after January 1, 1998, until a regulation is
adopted. Upon adoption of such a regulation on or after January 1,
1998, smoking may thereafter be permitted in gaming clubs and in bars
and taverns, subject to full compliance with, or conformity to, the
standard in the regulation within two years following the date of
adoption of the regulation. An employer failing to achieve compliance
with, or conformity to, the regulation within this two-year period
shall prohibit smoking in the gaming club, bar, or tavern until
compliance or conformity is achieved. If the Occupational Safety and
Health Standards Board and the federal Environmental Protection
Agency both adopt regulations specified in subparagraph (B) of
paragraph (1) that are inconsistent, the regulations of the
Occupational Safety and Health Standards Board shall be no less
stringent than the regulations of the federal Environmental
Protection Agency.
(4) From January 1, 1997, to December 31, 1997, inclusive, smoking
may be permitted in gaming clubs, as defined in paragraph (7) of
subdivision (d), and in bars and taverns, as defined in paragraph (8)
of subdivision (d), subject to both of the following conditions:
(A) If practicable, the gaming club or bar or tavern shall
establish a designated nonsmoking area.
(B) If feasible, no employee shall be required, in the performance
of ordinary work responsibilities, to enter any area in which
smoking is permitted.
(g) The smoking prohibition set forth in this section shall
constitute a uniform statewide standard for regulating the smoking of
tobacco products in enclosed places of employment and shall
supersede and render unnecessary the local enactment or enforcement
of local ordinances regulating the smoking of tobacco products in
enclosed places of employment. Insofar as the smoking prohibition set
forth in this section is applicable to all (100-percent) places of
employment within this state and, therefore, provides the maximum
degree of coverage, the practical effect of this section is to
eliminate the need of local governments to enact enclosed workplace
smoking restrictions within their respective jurisdictions.
(h) Nothing in this section shall prohibit an employer from
prohibiting smoking in an enclosed place of employment for any
reason.
(i) The enactment of local regulation of smoking of tobacco
products in enclosed places of employment by local governments shall
be suspended only for as long as, and to the extent that, the
(100-percent) smoking prohibition provided for in this section
remains in effect. In the event this section is repealed or modified
by subsequent legislative or judicial action so that the
(100-percent) smoking prohibition is no longer applicable to all
enclosed places of employment in California, local governments shall
have the full right and authority to enforce previously enacted, and
to enact and enforce new, restrictions on the smoking of tobacco
products in enclosed places of employment within their jurisdictions,
including a complete prohibition of smoking. Notwithstanding any
other provision of this section, any area not defined as a "place of
employment" or in which smoking is not regulated pursuant to
subdivision (d) or (e), shall be subject to local regulation of
smoking of tobacco products.
(j) Any violation of the prohibition set forth in subdivision (b)
is an infraction, punishable by a fine not to exceed one hundred
dollars ($100) for a first violation, two hundred dollars ($200) for
a second violation within one year, and five hundred dollars ($500)
for a third and for each subsequent violation within one year. This
subdivision shall be enforced by local law enforcement agencies,
including, but not limited to, local health departments, as
determined by the local governing body.
(k) Notwithstanding Section 6309, the division shall not be
required to respond to any complaint regarding the smoking of tobacco
products in an enclosed space at a place of employment, unless the
employer has been found guilty pursuant to subdivision (j) of a third
violation of subdivision (b) within the previous year.
(l) If any provision of this act or the application thereof to any
person or circumstances is held invalid, that invalidity shall not
affect other provisions or applications of the act that can be given
effect without the invalid provision or application, and to this end
the provisions of this act are severable.
6405. No employer, owner, or lessee of any real property shall
construct or cause to be constructed any place of employment that is
not safe and healthful.
6406. No person shall do any of the following:
(a) Remove, displace, damage, destroy or carry off any safety
device, safeguard, notice, or warning, furnished for use in any
employment or place of employment.
(b) Interfere in any way with the use thereof by any other person.
(c) Interfere with the use of any method or process adopted for
the protection of any employee, including himself, in such
employment, or place of employment.
(d) Fail or neglect to do every other thing reasonably necessary
to protect the life, safety, and health of employees.
6407. Every employer and every employee shall comply with
occupational safety and health standards, with Section 25910 of the
Health and Safety Code, and with all rules, regulations, and orders
pursuant to this division which are applicable to his own actions and
conduct.
6408. All employers shall provide information to employees in the
following ways, as prescribed by authorized regulations:
(a) Posting of information regarding protections and obligations
of employees under occupational safety and health laws.
(b) Posting prominently each citation issued under Section 6317,
or a copy or copies thereof, at or near each place a violation
referred to in the notice of violation occurred.
(c) The opportunity for employees or their representatives to
observe monitoring or measuring of employee exposure to hazards
conducted pursuant to standards promulgated under Section 142.3.
(d) Allow access by employees or their representatives to accurate
records of employee exposures to potentially toxic materials or
harmful physical agents.
(e) Notification of any employee who has been or is being exposed
to toxic materials or harmful physical agents in concentrations or at
levels exceeding those prescribed by an applicable standard, order,
or special order, and informing any employee so exposed of corrective
action being taken.
6409. (a) Every physician as defined in Section 3209.3 who attends
any injured employee shall file a complete report of every
occupational injury or occupational illness to the employee with the
employer, or if insured, with the employer's insurer, on forms
prescribed for that purpose by the Division of Labor Statistics and
Research. A portion of the form shall be completed by the injured
employee, if he or she is able to do so, describing how the injury or
illness occurred. The form shall be filed within five days of the
initial examination. Inability or failure of an injured employee to
complete his or her portion of the form shall not affect the employee'
s rights under this code, and shall not excuse any delay in filing
the form. The employer or insurer, as the case may be, shall file the
physician's report with the Department of Industrial Relations,
through its Division of Labor Statistics and Research, within five
days of receipt. Each report of occupational injury or occupational
illness shall indicate the social security number of the injured
employee. If the treatment is for pesticide poisoning or a condition
suspected to be pesticide poisoning, the physician shall also file a
complete report, which need not include the affidavit required
pursuant to this section, with the Division of Labor Statistics and
Research, and within 24 hours of the initial examination shall file a
complete report with the local health officer by facsimile
transmission or other means. If the treatment is for pesticide
poisoning or a condition suspected to be pesticide poisoning, the
physician shall not be compensated for the initial diagnosis and
treatment unless the report is filed with the employer, or if
insured, with the employer's insurer, and includes or is accompanied
by a signed affidavit which certifies that a copy of the report was
filed with the local health officer pursuant to the requirements of
this section.
(b) As used in this section, "occupational illness" means any
abnormal condition or disorder caused by exposure to environmental
factors associated with employment, including acute and chronic
illnesses or diseases which may be caused by inhalation, absorption,
ingestion, or direct contact.
6409.1. (a) Every employer shall file a complete report of every
occupational injury or occupational illness, as defined in
subdivision (b) of Section 6409, to each employee which results in
lost time beyond the date of the injury or illness, or which requires
medical treatment beyond first aid. An insured employer shall file
the report with the insurer on a form prescribed by the
Administrative Director of the Division of Workers' Compensation for
that purpose within five days after the employer obtains knowledge of
the injury or illness that has, or is alleged to have, arisen out of
and in the course of employment. A self-insured employer, the state,
or the insurer of an insured employer shall file the report in the
electronic form prescribed for that purpose by the administrative
director pursuant to Section 138.6 within the time prescribed by the
administrative director. The administrative director shall ensure
that the report required by this subdivision contains necessary
information to continue to be acceptable as substitute documentation
for purposes of recordkeeping required under the federal Occupational
Safety and Health Act of 1970 (29 U.S.C. Sec. 651 et seq.). Each
report of occupational injury or occupational illness shall indicate
the social security number of the injured employee. In the event an
employer has filed a report of injury or illness pursuant to this
subdivision and the employee subsequently dies as a result of the
reported injury or illness, the employer shall file an amended report
indicating the death with the Department of Industrial Relations,
through its Division of Workers' Compensation or, if an insured
employer, with the insurer, within five days after the employer is
notified or learns of the death. A copy of any amended reports
received by the insurer shall be filed with the Division of Workers'
Compensation in electronic form as prescribed by the administrative
director.
(b) In every case involving a serious injury or illness, or death,
in addition to the report required by subdivision (a), a report
shall be made immediately by the employer to the Division of
Occupational Safety and Health by telephone or telegraph. An employer
who violates this subdivision may be assessed a civil penalty of not
less than five thousand dollars ($5,000). Nothing in this
subdivision shall be construed to increase the maximum civil penalty,
pursuant to Sections 6427 to 6430, inclusive, that may be imposed
for a violation of this section.
6409.2. Whenever a state, county, or local fire or police agency is
called to an accident involving an employee covered by this part in
which a serious injury or illness, or death occurs, the responding
agency shall immediately notify the nearest office of the Division of
Occupational Safety and Health by telephone. Thereafter, the
division shall immediately notify the appropriate prosecuting
authority of the accident.
6409.3. In no case shall the treatment administered for pesticide
poisoning or a condition suspected as pesticide poisoning be deemed
to be first aid treatment.
6409.5. (a) Whenever any local public fire agency has knowledge
that a place of employment where garment manufacturing operations
take place contains fire or safety hazards for which fire and injury
prevention measures have not been taken in accordance with local fire
and life safety ordinances, the agency may notify the Division of
Occupational Safety and Health. This referral shall be made only
after the garment manufacturing employer has been given a reasonable
amount of time to correct violations.
(b) Whenever the Division of Occupational Safety and Health has
knowledge or reasonable suspicion that a place of employment where
garment manufacturing operations take place contains fire or safety
hazards for which fire and injury prevention measures have not been
taken in accordance with local fire and life safety ordinances, the
division shall notify the appropriate local public fire agency.
(c) Whenever the Division of Occupational Safety and Health
receives a referral by a local public fire agency pursuant to
subdivision (a) which informs the division that a place of employment
where garment manufacturing operations take place is not safe or is
injurious to the welfare of any employee, it shall constitute a
complaint for purposes of Section 6309 and shall be investigated.
(d) Whenever a local public fire agency receives a referral by the
Division of Occupational Safety and Health pursuant to subdivision
(b) which informs the local public fire agency that a place of
employment where garment manufacturing operations take place is not
safe or is injurious to the welfare of any employee, the local public
fire agency may investigate the referral at its discretion.
(e) (1) If the Division of Occupational Safety and Health acquires
knowledge that the garment manufacturing employer is not currently
registered, it shall notify the Division of Labor Standards
Enforcement.
(2) Local public fire agencies may make referrals of individuals
not registered as garment manufacturers to the Division of Labor
Standards Enforcement.
(3) Whenever the Division of Labor Standards Enforcement is
informed by the Division of Occupational Safety and Health or by a
local public fire agency that a garment manufacturing employer is
unregistered, the Division of Labor Standards Enforcement shall take
measures it deems appropriate to obtain compliance.
6410. The reports required by subdivision (a) of Section 6409 and
Section 6413 shall be made in the form and detail and within the time
limits prescribed by reasonable rules and regulations adopted by the
Division of Labor Statistics and Research in accordance with Chapter
3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title
2 of the Government Code.
Nothing in this chapter requiring recordkeeping and reporting by
employers shall relieve the employer of maintaining records and
making reports to the assistant secretary, United States Department
of Labor, as required under the Federal Occupational Safety and
Health Act of 1970 (P.L. 91-596). The Division of Labor Statistics
and Research shall prescribe and provide the forms necessary for
maintenance of the required records, and the Division of Occupational
Safety and Health shall enforce by citation and penalty assessment
any violation of the recordkeeping requirements of this chapter.
All state and local government employers shall maintain records
and make reports in the same manner and to the same extent as
required of other employers by this section.
6410.5. The reports required by subdivision (a) of Section 6409,
subdivision (a) of Section 6409.1, and Section 6413 shall contain,
prominently stated, the statement set forth in Section 5401.7.
6411. Every employer or insurer receiving forms with directions
from the Division of Labor Statistics and Research to complete them
shall cause them to be properly filled out so as to answer fully and
correctly each question propounded therein. In case of inability to
answer any such questions, a good and sufficient reason shall be
given for such failure.
6412. No report of injury or illness required by subdivision (a) of
Section 6409.1 shall be open to public inspection or made public,
nor shall those reports be admissible as evidence in any adversary
proceeding before the Workers' Compensation Appeals Board. However,
the reports required of physicians by subdivision (a) of Section 6409
shall be admissible as evidence in the proceeding, except that no
physician's report shall be admissible as evidence to bar proceedings
for the collection of compensation, and the portion of any physician'
s report completed by an employee shall not be admissible as evidence
in any proceeding before the Workers' Compensation Appeals Board.
6413. (a) The Department of Corrections, and every physician or
surgeon who attends any injured state prisoner, shall file with the
Division of Labor Statistics and Research a complete report, on forms
prescribed under Sections 6409 and 6409.1, of every injury to each
state prisoner, resulting from any labor performed by the prisoner
unless disability resulting from such injury does not last through
the day or does not require medical service other than ordinary first
aid treatment.
(b) Where the injury results in death a report, in addition to the
report required by subdivision (a), shall forthwith be made by the
Department of Corrections to the Division of Labor Statistics and
Research by telephone or telegraph.
(c) Except as provided in Section 6304.2, nothing in this section
or in this code shall be deemed to make a prisoner an employee, for
any purpose, of the Department of Corrections.
(d) Notwithstanding subdivision (a), no physician or surgeon who
attends any injured state prisoner outside of a Department of
Corrections institution shall be required to file the report required
by subdivision (a), but the Department of Corrections shall file the
report.
6413.2. (a) The Division of Labor Statistics and Research shall,
within five working days of their receipt, transmit to the Division
of Occupational Safety and Health copies of all reports received by
the Division of Labor Statistics and Research pursuant to Section
6413.
(b) With regard to any report required by Section 6413, the
Division of Occupational Safety and Health may make recommendations
to the Department of Corrections of ways in which the department
might improve the safety of the working conditions and work areas of
state prisoners, and other safety matters. The Department of
Corrections shall not be required to comply with these
recommendations.
(c) With regard to any report required by Section 6413, the
Division of Occupational Safety and Health may, in any case in which
the Department of Corrections has not complied with recommendations
made by the division pursuant to subdivision (b), or in any other
case in which the division deems the safety of any state prisoner
shall require it, conduct hearings and, after these hearings, adopt
special orders, rules, or regulations or otherwise proceed as
authorized in Chapter 1 (commencing with Section 6300) of this part
as it deems necessary. The Department of Corrections shall comply
with any order, rule, or regulation so adopted by the Division of
Occupational Safety and Health.
6413.5. Any employer or physician who fails to comply with any
provision of subdivision (a) of Section 6409, or Section 6409.1,
6409.2, 6409.3, or 6410 may be assessed a civil penalty of not less
than fifty dollars ($50) nor more than two hundred dollars ($200) by
the director or his or her designee if he or she finds a pattern or
practice of violations, or a willful violation of any of these
provisions. Penalty assessments may be contested in the manner
provided in Section 3725. Penalties assessed pursuant to this section
shall be deposited in the General Fund.
