On September 15, 2021, a divided panel of the Ninth Circuit Court of Appeals decided…
Lawsuit Prevention for Employers
California law requires that all California employers maintain a written Injury and Illness Prevention Program (“IIPP”). This is intended to educate employees about the hazards associated with their workplace duties, and the procedures, training and equipment the employer provides for the purpose of minimizing or eliminating them.
The content of an IIPP is largely dictated by the specific hazards presented in each employer’s workplace. IIPP’s are typically required to include, among other elements, a fire prevention plan, emergency action plan, a hazard communication program and a workplace security program.
Certain employers are required to include additional elements, depending on the hazards presented in their respective workplaces. For example, building contractors must include a fall prevention plan and a heat prevention program, while health care employers must include a blood borne pathogens exposure control program.
Many employers are unaware that California law requires employers to include a discussion of the IIPP in their employee handbooks. This requires employers to, in effect, utilize the handbook to draw the attention of employees to the IIPP, where to find it, and how it can prevent workplace injuries. The failure of employers to comply with these requirements, and to maintain a legally-compliant IIPP, assumes new urgency in light of recent developments.
For the first time since 1990, the Occupational Safety and Health Administration (OSHA) has been authorized to increase its civil penalties, and to conduct workplace inspections and investigations to determine whether employers are complying with standards designed to enhance safety in the workplace. The Agency’s resources are being directed to “high hazard” industries on a priority basis.
Cal OSHA’s 2016-2017 list of High Hazard Industries includes many entries that will come as a surprise. For example, the new list includes:
- Grain farming;
- Vegetable and melon farming;
- Residential building construction;
- Framing contractors;
- Masonry contractors;
- All food manufacturing;
- All millwork (including flooring);
- Steel product manufacturing from purchased steel;
- Ornamental and architectural metal work manufacturing;
- Wood kitchen cabinet and countertop manufacturing;
- Office furniture (including fixtures) manufacturing;
- Other furniture related product manufacturing;
- General merchandise stores;
- Landscaping services;
- Nursing and residential care facilities;
- Hotels and motels;
- Pet care (except veterinary) services;
- Sheep and goat farming;
- Other animal production;
- Residential intellectual and developmental disability, mental and substance abuse facilities;
- Other residential care facilities;
- Small electrical appliance manufacturing;
- Blind and shade manufacturing; and
- Limousine service.
Whether or not an employer is engaged in an industry that appears on the high-hazard list, the legal compliance of its IIPP is worthy of serious attention. Since employers are required to report to Cal OSHA any serious injury within eight hours, every workplace is only an injury away from a Cal OSHA investigation, that will invariably include a careful examination of the IIPP. A “serious injury” is defined to include any injury requiring hospitalization or any amount of missed work.
In the event of a Cal OSHA inspection, the first question will likely be, “May I see your Injury and Illness Prevention Program?” If the IIPP does not address within its pages the hazard resulting in the injury, and the means provided by the employer for preventing it, the employer is vulnerable to an assertion that it failed to provide legally-mandated safety training, and that it was this failure that caused the injury.
Of perhaps greater concern, California courts have held that violations found by Cal OSHA can be used in subsequent civil lawsuits based on the same injury to demonstrate liability on the part of the employer.
Jay G. Putnam is a Petaluma labor lawyer who has specialized in representing California employers for over three decades. His practice is devoted to preventing lawsuits against his clients, without sacrificing workplace authority or management prerogatives.
While no one can guarantee a future free of lawsuits, Putnam has compiled a remarkable record of success: Not one employer-client has been sued in 36 years with his system of precautions in place.
For those clients who have arrived with pending lawsuits, Putnam has established an excellent track record of success as well.
You are invited to visit Mr. Putnam’s website, where you will find in-depth discussion of the most common mistakes made by California employers, and how to avoid them. www.jaygputnam.com/articles-by-jay-g-putnam/