California Code of Regulations › Title 8 - Industrial Relations › Division 1 - Department of Industrial Relations › Chapter 3.2 - California Occupational Safety and Health Regulations (Cal/OSHA) › Subchapter 1 - Regulations of the Director of Industrial Relations › Article 4 - Proposed Penalty Procedure › Section 334 - Classification of Violations and Definitions

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
For purposes of penalty assessments, violations of
						occupational safety and health standards, violations of California Health and
						Safety Code Sections
						2950
						and
						25910,
						orders, special orders and regulations are classified as follows:
(a) Regulatory Violation--is a violation,
					 other than one defined as Serious or General that pertains to permit, posting,
					 recordkeeping, and reporting requirements as established by regulation or
					 statute. For example, failure to obtain permit; failure to post citation,
					 poster; failure to keep required records; failure to report industrial
					 accidents, etc.
(b) General
					 Violation--is a violation which is specifically determined not to be of a
					 serious nature, but has a relationship to occupational safety and health of
					 employees.
(c) Serious Violation.
(1) 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.
(2) For purposes of a serious violation, the
					 "actual hazard" may consist of, among other things:
(A) A serious exposure exceeding an
					 established permissible exposure limit;
(B) 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.
(3) If the Division establishes a presumption
					 pursuant to subdivision (c)(1) 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:
(A) 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 the employer's:
1. Training for employees and supervisors
					 relevant to preventing employee exposure to the hazard or to similar
					 hazards;
2. Procedures for
					 discovering, controlling access to, and correcting the hazard or similar
					 hazards;
3. Supervision of
					 employees exposed or potentially exposed to the cited hazard;
4. Procedures for communicating to employees
					 about the employer's health and safety rules and programs; and
5. Information that the employer wishes to
					 provide, at any time before citations are issued, including, any of the
					 following:
a. The employer's explanation of
					 the circumstances surrounding the alleged violative events.
b. Why the employer believes a serious
					 violation does not exist.
c. Why
					 the employer believes its actions related to the alleged violative events were
					 reasonable and responsible so as to rebut, pursuant to subdivision (c)(3), any
					 presumption established pursuant to subdivision (c)(1).
d. Any other information that the employer
					 wishes to provide.
(B) The employer took effective action to
					 eliminate employee exposure to the hazard created by the violation as soon as
					 the violation was discovered.
(4) For Carcinogens--a 'serious violation is
					 a violation of any standard, order, or special order respecting the use of a
					 carcinogen, as defined in 8 California Code of Regulations 330(f). However, the
					 violation shall not be considered serious if the employer can demonstrate that
					 he did not, and could not with the exercise of reasonable diligence, know of
					 the presence of the violation or he can demonstrate that the Division should
					 have determined that the violation was minor and resulted in no substantial
					 health hazard.