IR #98-24
Tuesday, June 30, 1998

Carol Brown (OSHAB)
(916) 322-5080
Dean Fryer
(415) 972-8835

Field Sanitation Executive Summary
Decisions After Reconsideration

Cal/OSHA Appeals Board Issues Determinations on Field Sanitation Rules

SAN FRANCISCO --The Occupational Safety and Health Appeals Board has issued six decisions, which together form a comprehensive interpretation of when the mandatory minimum penalty of $750, prescribed by the Labor Code, applies to violations of California's field sanitation regulations, James Gazdecki, Chairman of the Board announced.

"The Board sought to clarify previous decisions, rendered by its administrative law judges, by distinguishing between employers who neglect completely, or for substantial periods of time, to make efforts to ensure that all required facilities are available to employees from those employers who do take all the steps that should result in complete facilities being available, but at the time of an inspection are found to be lacking some supply that they normally make available," Gazdecki said.

The Board's action classifies violations (for the purpose of appeals) into three categories:

  1. an employer fails to provide a facility such as a toilet, handwashing facility, or drinking water at all;
  2. an employer provides a facility, but an integral component of the facility is missing for a substantial period of time;
  3. the facility is provided but a part of a facility, usually one that can be characterized as a "supply" such as single-use cups or toilet paper rather than a core element, is absent for only a brief time.

Under the Board's findings, categories 1 and 2 automatically trigger the $750 minimum penalty as a "failure to provide a facility." Where a supply is found to be missing, it will be presumed to be a violation of category 2 unless the employer rebuts the presumption and brings itself into the third category, which can be characterized as a "failure to maintain supplies." The penalties for failure to maintain supplies will then be computed in accordance with the normal penalty setting provisions, rather than the mandatory $750 penalty which the Labor Code requires for failure to provide sanitation facilities.

"The Board determined that assessing the same substantial minimum civil penalty for both a total 'failure to provide' and a brief, non-pervasive 'failure to maintain' might have the unintended effect of discouraging employers who are endeavoring to meet their field sanitation responsibilities," Gazdecki said.

"The failure to maintain supplies is still a violation of the field sanitation standard, but not one that automatically subjects the employer to the $750 minimum civil penalty," he said.

"However, it is up to the employer, upon appeal of the citations, to provide convincing evidence that it had an inspection system in place to detect the absence of supplies and an available quantity of supplies to ensure that any absence is both infrequent and for a relatively brief period of time," Gazdecki said, "Otherwise the violation will be considered a 'failure to provide' and will carry the harsher penalty."

Since 1992 when the field sanitation standard became effective, there have been approximately 500 appeals filed with OSHAB by employers who were cited by the Division of Occupational Safety and Health. The decisions on these appeals, issued by administrative law judges, while not precedentially-binding, have given varying interpretations to the field sanitation standard and the minimum $750 penalty set forth in the Labor Code.

The Board therefore issued orders of reconsideration on its own motion in six cases, in order to provide a comprehensive interpretation of the applicability of the $750 minimum civil penalty for failures to provide facilities required by the field sanitation standard. The resulting decisions were issued by the Board on June 25, 1998.

"In reaching its decisions, the Board took the extraordinary step of inviting the filing of amicus briefs by the public, to make certain it had the fullest understanding of the competing legal interests," he added. Amicus briefs were filed by the California Labor Federation, AFL-CIO; the Farm Bureau; the Western Growers Association and the California Farm Labor Contractors Association jointly; and by the Agricultural Council of California. The California Rural Legal Assistance Foundation, an intervenor, also filed briefs.

In these decisions, the Board was clear that "the importance of Employers being consistently diligent in maintaining toilet [and other sanitary] facilities, including an adequate supply of toilet paper, cannot be overstated. As a matter of basic sanitation and human dignity, nobody, including those who work in California's fields, should be deprived of something so basic and essential."

Copies of the decisions and an executive summary of them are available from the Occupational Safety and Health Appeals Board by calling (916) 322-5080.

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