Tougher Workplace Laws : Safety: Legislation requiring employers to have a written plan takes effect Monday. California leads the 'quality-of-life' issue.

By MICHAEL FLAGG

June 30, 1991 12 AM PT

TIMES STAFF WRITER

NEWPORT BEACH — At Hixson Metal Finishing in Newport Beach, Monday will hold no surprises.

That’s when every business in the state--no matter how small, no matter what industry--must have a written workplace-safety plan. Under a new state law, employers found without a plan more than once face fines up to $10,000.

The law, which will be administered by the California Occupational Safety and Health Administration, is regarded by some as part of a new surge of interest nationwide in worker safety.

“People everywhere are starting to get interested in these things because it’s a quality-of-life issue,” said Joseph Kinney of the National Safe Workplace Institute in Chicago, an advocacy group. “But it started in California, because those kind of issues are bigger there.”

For some companies, the new law isn’t that big a deal. Like many businesses, particularly in heavy industry, Hixson is already required by state law to have much of its plan written.

So the new law “was just a little more paperwork,” said Suzanne Polk, personnel manager for Hixson, which employs 127 people.

But that’s not the case for many other small employers, some of whom are just hearing about the new law.

“I continue to get calls from people who’re surprised by all this,” some of them quite rattled, said Larry Ball, regional manager of the Merchants and Manufacturers Assn. in Orange County, a trade group. “But any employer who’s paid attention to safety is going to have 95% of this stuff already in place.”

The law--often referred to by its bill number, SB198--also requires employers to look for hazards in their workplace and correct them immediately.

The law is the most far-reaching of its kind in the nation. One of Cal/OSHA’s main jobs has traditionally been to punish employers for safety violations. Supporters of the new law say it reorients Cal/OSHA to emphasize prevention as well.

“We were trying to send OSHA in another direction entirely,” said Andrew Schaefer, who worked on the bill at the state Senate Office of Research. “We wanted it to focus on prevention rather than simply carrying out inspections and issuing citations.”

There are only 200 Cal/OSHA inspectors to check the state’s hundreds of thousands of offices, shops and factories for hazards. The new law shifts more of the burden for finding and correcting hazards onto employers.

OSHA already targets certain high-hazard industries--construction, chemicals and the like--for periodic inspections, and now it will also start checking to see if they have their safety plans in order. But most businesses won’t be required by OSHA to produce a copy of their plan unless there’s a complaint from a worker or an accident.

Even people who don’t like the law concede that it will probably help prevent on-the-job injuries and illnesses, which killed more than 4,000 Californians in the 1980s.

“It may very well prevent some injuries if it creates greater awareness of safety in the workplace,” said Jeff Tanenbaum, an employer’s lawyer at Littler, Mendelson, Fastiff & Tichy in San Francisco. Tanenbaum, however, complained that the law isn’t necessary because it duplicates many existing Cal/OSHA regulations.

In fact, state law already requires all employers to provide a safe workplace. And, since the late 1970s, it has required them to have a safety program, too.

The biggest change in the new law is that the plan must be in writing--thus providing proof that the company actually has a safety program, if not complete assurance that the plan is being followed.

Most big companies already have formal safety plans; the new law will merely add a little to their workload.

For smaller employers who often don’t have formal plans, the requirements will be a little more onerous. But it is precisely these companies that most need safety plans, advocates of the law say.

For those small businesses, a cottage industry has sprung up around the new Cal/OSHA law and an even more-stringent state law went into effect in January. That one says you can go to jail and pay stiff fines for knowingly concealing a hazard from your workers or the public. It is also the most far-reaching law of its kind in the nation.

Complained Sen. Bill Greene, (D-Los Angeles), author of the safety-plan law: “Employers have been bombarded by businesses selling safety and health services accompanied by propaganda designed to frighten and threaten them. The result has been an unreasonable fear of this regulation, particularly on the part of small employers.”

Some people see these new laws as signs of a renewed interest in workplace safety after a decade of deregulation in the 1980s when OSHA was regularly vilified by business.

They trace the change in California to 1988 when voters approved restoring Cal/OSHA a year after it was shut down by then-Gov. George Deukmejian. Most of its duties had been transferred to the less-stringent federal OSHA program.

“There was a tremendous public uproar over OSHA,” said Tanenbaum, the San Francisco lawyer. “I think at that point the Legislature saw there was a great interest in workplace issues, and we started getting all this legislation.”

Some legislators thought the revived Cal/OSHA needed more muscle. Once tougher than the federal OSHA program, the state agency has yet to regain the size and strength it had before 1987.

In 1989, the Legislature passed the law that takes effect Monday. Then, in 1990, the Legislature passed the California Corporate Criminal Liability Act, which provides for jail sentences or fines for managers found guilty of knowingly concealing a hazard from a worker or the public.

Until then, the worst a manager usually faced were civil penalties, even in cases of a worker’s death or serious injury. In the few cases where managers were prosecuted for causing deliberate injury to workers, it was usually under existing criminal statutes like manslaughter that were a little vague on the subject of deliberately injuring workers on the job. The new law was dubbed by a dismayed business community as the “be a manager, go to jail” law.

In just a few years, the state had gone from not even having its own OSHA program to again being a national leader in worker safety.

“You can see a larger trend here in the perception by some that Cal/OSHA and the federal OSHA program rely too much on employer cooperation and don’t enforce the law rigorously enough,” said Bruce D. May, an employers’ lawyer with the Newport Beach firm Stradling, Yocca, Carlson & Rauth. “In the case of the criminal liability law, it’s not even OSHA you’ll have to worry about in the future; it’s some district attorney with an environmental crimes unit.”

Indeed, the surge of interest in preserving the environment may also have helped renew interest in workplace safety issues, said H. Eric Schockman, associate director of the Jesse M. Unruh Institute of Politics at USC.

“There’s a notion that Californians are seeing the quality of life here slipping away from them,” Schockman said. “They know the government role has slipped drastically in this area of workplace regulation, and they see a need to reestablish it.”

The criminal liability law, for instance, had the support of the Sierra Club as well as the usual backing by labor unions for such legislation.

Supporters of a tougher OSHA also point out that Gov. Pete Wilson, unlike Deukmejian, supported the initiative to restore Cal/OSHA.

“It’s hard to tell what he’s going to do on these issues because he hasn’t appointed a new director of OSHA yet,” said Tom Rankin, research director for the state AFL-CIO. “Who he appoints should give us an idea.”

There are likely to be more worker-safety laws ahead. The AFL-CIO is supporting a bill in Sacramento that aims to prevent repetitive stress injury, a nerve and muscle ailment most prevalent among office workers and other employees who spend long hours working on computer terminals.

In Washington, the national AFL-CIO is finishing up a bill that could be introduced in Congress soon to revamp the federal OSHA program.

The AFL-CIO bill would include a provision that each employer must have a written safety program. It has another provision--similar to the California law that took effect in January--that would beef up OSHA’s ability to prosecute managers who knowingly endanger workers. (Similar legislation on criminal penalties is pending in Congress.)

Under existing federal law, a manager can be charged only with a misdemeanor and only in the case of a death. Even so, OSHA’s record of referring cases to the Justice Department is dismal, said Peg Seminario, director of occupational safety and health at the AFL-CIO in Washington. In 20 years, OSHA has referred fewer than 100 cases for prosecution.

“You can do more time under federal law for bothering a burro on federal land than you can for killing a worker,” she said. “After 20 years, the OSHA program at least deserves to be reviewed.”

Most business people acknowledge the need for some regulation and also recognize the benefits that safety regulations provide in the form of lower worker-compensation costs. But, say some attorneys for employers, some regulations are more troublesome than effective and go too far.

“A lot of this is becoming extremely burdensome and adding to the cost of doing business here,” said R. Craig Scott of the Irvine law firm Pettis, Tester, Kruse & Krinsky.

Scott pointed out that all sorts of office employers, from law firms to travel agencies--where workplace injuries are rare and usually slight--must still have a written safety plan under the new state law. The law’s definition of what constitutes a workplace hazard is overly vague, he said.

What’s more, the great tide of deregulation that swept the United States in the 1980s did little to change or weaken most worker-safety regulations and other labor laws, said David Lewin, director of UCLA’s Institute of Industrial Relations.

“Human resources, in general, was an area that was not subject to deregulation in the last 10 to 15 years,” he said.

Still, stronger worker-safety regulations seem to be ahead.

“The pendulum is starting to swing the other way from the 1980s,” said Seminario of the AFL-CIO. “There’s a greater concern about environmental problems, and people are starting to realize that many of these have their source in the workplace.”

Workplace Injuries Work-related illnesses and accidents occur a little more often in California than in the nation as a whole, according to the latest available statistics. But the frequency of workplace injuries is dropping slightly in California, the numbers show, while increasing in the nation.

Source: State Department of Industrial Relations, federal Bureau of Labor Statistics