(a)
There shall be a rebuttable presumption that a “serious violation” exists in a place of employment if the division demonstrates that there is a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation. The demonstration of a violation by the division is not sufficient by itself to establish that the violation is serious. The actual hazard may consist of, among other things:
(1)
A serious exposure exceeding an established
permissible exposure limit.
(2)
The existence in the place of employment of one or more unsafe or unhealthful practices, means, methods, operations, or processes that have been adopted or are in use.
(b)
(1)Before issuing a citation alleging that a violation is serious, the division shall make a reasonable attempt to determine and consider, among other things, all of the following:
(A)
Training for employees and supervisors relevant to preventing employee exposure to the hazard or to similar hazards.
(B)
Procedures for discovering, controlling access to, and correcting the hazard or similar hazards.
(C)
Supervision of employees exposed or potentially exposed to the
hazard.
(D)
Procedures for communicating to employees about the employer’s health and safety rules and programs.
(E)
Information that the employer wishes to provide, at any time before citations are issued, including, any of the following:
(i)
The employer’s explanation of the circumstances surrounding the alleged violative events.
(ii)
Why the employer believes a serious violation does not exist.
(iii)Why the employer believes its actions related to the alleged violative events were reasonable and responsible so as to rebut, pursuant to subdivision (c), any presumption established pursuant to subdivision (a).
(iv)
Any other
information that the employer wishes to provide.
(2)
The division shall satisfy its requirement to determine and consider the facts specified in paragraph (1) if, not less than 15 days prior to issuing a citation for a serious violation, the division delivers to the employer a standardized form containing the alleged violation descriptions (“AVD”) it intends to cite as serious and clearly soliciting the information specified in this subdivision. The director shall prescribe the form for the alleged violation descriptions and solicitation of information. Any forms issued pursuant to this section shall be exempt
from the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code).
(c)
If the division establishes a presumption pursuant to subdivision (a) that a violation is serious, the employer may rebut the presumption and establish that a violation is not serious by demonstrating that the employer did not know and could not, with the exercise of reasonable diligence, have known of the presence of the violation. The employer may accomplish this by demonstrating both of the following:
(1)
The employer took all the steps a reasonable and responsible employer in like circumstances should be expected to take, before the violation occurred, to anticipate and prevent the violation, taking into consideration the severity of the harm that could be expected to occur and the likelihood of that
harm occurring in connection with the work activity during which the violation occurred. Factors relevant to this determination include, but are not limited to, those listed in subdivision (b).
(2)
The employer took effective action to eliminate employee exposure to the hazard created by the violation as soon as the violation was discovered.
(d)
If the employer does not provide information in response to a division inquiry made pursuant to
subdivision (b), the employer shall not be barred from presenting that information at the hearing and no negative inference shall be drawn. The employer may offer different information at the hearing than what was provided to the division and may explain any inconsistency, but the trier of fact may draw a negative inference from the prior inconsistent factual information. The trier of fact may also draw a negative inference from factual information offered at the hearing by the division that is inconsistent with factual information provided to the employer pursuant to subdivision (b), or from a failure by the division to provide the form setting forth the descriptions of the
alleged violation and soliciting information pursuant to subdivision (b).
(e)
“Serious physical harm,” as used in this part, means any injury or illness, specific or cumulative, occurring in the place of employment or in connection with any employment, that results in any of the following:
(1)
Inpatient hospitalization for purposes other than medical observation.
(2)
The loss of any member of the body.
(3)
Any serious degree of permanent disfigurement.
(4)
Impairment sufficient to cause a part of the body or the function of an organ to become permanently and significantly reduced in efficiency on or off the job, including,
but not limited to, depending on the severity, second-degree or worse burns, crushing injuries including internal injuries even though skin surface may be intact, respiratory illnesses, or broken bones.
(f)
Serious physical harm may be caused by a single, repetitive practice, means, method, operation, or process.
(g)
A division safety engineer or industrial hygienist who can demonstrate, at the time of the hearing, that his or her division-mandated training is current shall be deemed competent to offer testimony to establish each element of a serious violation, and may offer evidence on the custom and practice of injury and illness prevention in the workplace
that is relevant to the issue of whether the violation is a serious violation.