©2023 Seyfarth Shaw LLP www.seyfarth.com 2023 Cal-Peculiarities | 361 prospect of civil actions under the Unfair Competition Law (UCL). A water heater explosion at Solus Industrial Innovations, Inc. left two employees dead. The Division of Occupational Safety and Health issued citations for alleged Cal/OSHA violations. While Solus appealed to the Cal/OSHA Appeals Board, the California Bureau of Investigations investigated and forwarded its findings to the Orange County district attorney, who filed criminal charges against the plant manager and maintenance supervisor for felony violations of the Labor Code. The district attorney also sued Solus under the UCL law and the Fair Advertising Law, alleging that maintaining an unsafe work environment amounted to an unfair business practice and that stating commitments to workplace safety standards amounted to false advertising. Solus convinced the Court of Appeal that these claims were preempted by the federal OSHA statute, but then the district attorney obtained review by the California Supreme Court. In Solus Industrial Innovations v. Superior Court, 17 a unanimous Supreme Court reversed. Solus held that federal OSHA did not preempt a civil action. Rather, California law preempted federal OSHA—in a reversal of traditional preemption. Solus explained that federal OSHA occupies the field of workplace safety and health, but permits states to create their own regulatory plans subject to federal review and approval. Federal OSHA thus provides a regulatory “floor” under which state plans may not fall, but states may enact broader workplace safety protection than found under federal OSHA. And California, of course, has done that. According to Solus, federal OSHA, by allowing states to provide broader protections, anticipates that states may use enforcement mechanisms other than administrative litigation under the state plans to further their aims. Solus concluded that civil litigation is not foreclosed by the federal statutory scheme. To make the employers’ plight more precarious still, Solus noted that UCL and unfair-advertising actions may be brought by both government officials and by persons who have suffered an “injury in fact.”18 14.11 Injury & Illness Recordkeeping and Reporting California employers must report “any serious injury or illness, or death” of any employee to the nearest Cal/OSHA District Office within eight hours.19 Serious injury or illness means any injury or illness occurring in a place of employment or in connection with employment that requires inpatient hospitalization for other than medical observation or diagnostic testing, or in which an employee suffers an amputation, the loss of an eye, or any serious degree of permanent disfigurement, but does not include any injury or illness or death caused by an accident on a public street or highway, unless the accident occurred in a construction zone. Because the definition includes “occurring in a place of employment,” this reporting rule applies regardless of whether the injury, illness, or death was work-related. Therefore, employers must report even incidents such as heart attacks or brain aneurisms that occur at work, or illnesses where symptoms first manifest in the workplace, even if they have no relation to the work environment. Legislation effective January 2019 is another example of California deciding to deviate from federal standards. Cal/OSHA now may issue recordkeeping citations for errors in Cal/OSHA forms for up to five years,20 as opposed to the six-month limitations period endorsed by federal OSHA. 14.12 Single-User Restrooms An FEHC regulation requires that all single-user toilet facilities in any California business establishment, place of public accommodation, or government agency be identified as all-gender facilities.21 Specific signage requirements apply.22 But companies in certain industries covered by Cal/OSHA must still separately mark nonflushing toilet facilities for men and women.23
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