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On Sept. 19, Gov. Jerry Brown active AB 2334 to accomplish assorted abode assurance and bloom changes to California law, abundantly in acknowledgment to contempo action by President Donald Trump’s administration. 

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Among added things, AB 2334 requires the California Division of Occupational Assurance and Bloom (Cal/OSHA) to adviser federal cyberbanking record-keeping requirements and—depending on federal action—to assemble an advising board to appraise how to move advanced with a state-law adaptation of the proposed record-keeping requirements. 

In addition, AB 2334 resurrects the declared Volks rule, which provides for a best statute of limitations for almanac assimilation violations. AB 2334 goes into aftereffect on Jan. 1, 2019.

Back in 2016, during aloft President Barack Obama’s administration, the federal Department of Labor adopted a new cyberbanking record-keeping and advertisement action accepted as the Improve Tracking of Abode Injuries and Illnesses rule.  However, the Trump administration recently suspended the July 1, 2018 borderline for the cyberbanking acquiescence of OSHA 300 log and 301 anatomy (first address of injury) advice for worksites with added than 250 advisers and appear a proposed aphorism to alter and relax the added advertisement requirements.

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In an accomplishment to abide this federal action, AB 2334 requires Cal/OSHA to adviser rulemaking at the federal level. If it determines that federal OSHA has “eliminated or essentially diminished” the cyberbanking record-keeping proposal, Cal/OSHA is appropriate to assemble an advising board aural 120 canicule to “evaluate how to apparatus the changes all-important to assure the goals” of the proposed federal aphorism as issued by the Obama administering in May 2016.

Therefore, it seems bright that California is ambience itself up to appoint its own adaptation of the proposed federal aphorism should the Trump administering ultimately relax the cyberbanking advertisement proposal.

The Volks Rule

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AB 2334 additionally contains a accouterment that seeks to disclose a statute of limitations aphorism accompanying to recordkeeping requirements accepted as the Volks rule.  The aphorism accustomed its appellation from a D.C. Circuit Court case that captivated that federal OSHA could not adduce administering for declining to almanac abode injuries or illnesses if the abuse took abode added than six months afore the commendation was issued. However, in the crumbling canicule of the Obama administration, federal OSHA adopted what amounted to a five-year statute of limitations for such violations, advertence that the assignment to almanac an abrasion or affliction continues for the abounding five-year almanac assimilation aeon beneath federal law. In 2017, however, Trump active a resolution pursuant to the Congressional Analysis Act that revoked this rule.

Following the D.C. Circuit Court case mentioned above, the Cal/OSHA Appeals Board appear in a accommodation that it would analogously adapt the “occurrence” statute of limitations as barring any commendation for abortion to address an abrasion which occurred added than six months afterwards the violation.  

AB 2334 apology California law to abundantly backslide to the Obama Administration’s Volks aphorism by allegorical that a adverse “occurrence” for almanac assimilation violations continues until it is corrected, Cal/OSHA discovers the violation, or the assignment to accede with the claim is no best applicable. In added words, a abortion to almanac an abrasion or affliction would be accounted a “continuing violation” until apparent or corrected.

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Next Steps

AB 2334 goes into aftereffect on Jan. 1, 2019. With account to the accoutrement accompanying to the proposed federal cyberbanking advertisement rule, California administering will accept to accept a “wait and see” approach. Depending on the final action taken by the Trump administration, Cal/OSHA could be appropriate to anatomy an advising board to respond. However, any advertisement changes after adopted would crave added aldermanic or authoritative activity. We’ll abide to adviser developments at the accompaniment and federal akin and accumulate you acquainted of any added developments taken by Cal/OSHA.

With account to the changes accompanying to the best statute of limitations aeon for declared almanac assimilation violations, California administering should apprehend to see citations issued by Cal/OSHA for such violations action aback above the accustomed six-month statute of limitations period. Therefore, administering should analysis their record-keeping and assimilation processes for abode injuries or illnesses, abnormally their OSHA 300 logs, and accomplish any changes all-important to ensure compliance. 

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California administering are acceptable to see advancing administration action from Cal/OSHA gluttonous to “reach back” years into the accomplished for these types of record-keeping violations.

Benjamin Ebbink is an advocate with Fisher Phillips in Sacramento. © 2018 Fisher Phillips. All rights reserved. Reposted with permission.

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