Title 8. Division of Occupational Safety and Health

NOTICE IS HEREBY GIVEN that the Division of Labor Statistics and Research is proposing to take the action described in the Informative Digest. Any person interested may present statements or arguments orally or in writing relevant to the action proposed at a hearing to be held beginning at 10 a.m. in Hearing Room 9 at the Hiram Johnson State Building at 455 Golden Gate Avenue, San Francisco, California on Monday, May 13, 2002. These facilities are accessible to persons with mobility impairments.

Written comments must be received by mail, by fax or by email no later than 5:00 p.m. on Monday, May 13, 2002, or must be received at the hearing. Comments must be addressed to either of the following:

Robert Nakamura, Senior Industrial Hygienist
Department of Industrial Relations
Division of Occupational Safety and Health
455 Golden Gate Avenue, 10th Floor, San Francisco, CA 94102
Fax: (415) 703-5114
email: DOSHInfo@dir.ca.gov

Ramon Cruz, Research Manager
Department of Industrial Relations
Division of Labor Statistics and Research
455 Golden Gate Avenue, 8th Floor, San Francisco, CA 94102
Fax: (415) 703-3029
email: DOSHInfo@dir.ca.gov

The official record of the rulemaking proceeding will be closed at 5:00 p.m. on May 13, 2002. The Division of Labor Statistics and Research shall not consider written comments received after that date and time unless an extension of time in which to receive specific written comments is announced at the public hearing.

The Division of Labor Statistics and Research may thereafter adopt the proposed regulations substantially as described below, or may modify it if such modification is sufficiently related to the original text. With the exception of technical or grammatical changes, the full text of any modified proposal will be available for 15 days prior to its adoption from the person designated in this Notice as contact person and will be mailed to those persons who submit written or oral testimony related to this proposal or who have requested notification of any changes to the proposal.

Authority and Reference

Authority cited: Labor Code Sections 50.7 and 6410.

Reference: Labor Code Section 6410.

Informative Digest/Policy Statement Overview

Pursuant to Labor Code Section 6410, DLSR, a division within the Department of Industrial Relations, is charged with prescribing and providing the forms necessary for maintenance of records of occupational injuries and illnesses required by the United States Department of Labor under the Federal Occupational Safety and Health Act of 1970 (P.L. 91-596). Requirements for fulfilling this mandate are currently found in Article 2 of Subchapter 1, Chapter 7, Division 1 of Title 8 in the California Code of Regulations ("Article 2").

On January 19, 2001, the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) promulgated revisions to regulations at 29 CFR 1904 addressing Occupational Injury and Illness Recording and Reporting. See Federal Register Volume 66, No. 13, pages 5916-6135. The State of California, through DLSR, was required by the provisions of 29 CFR 1902.3(k), 29 CFR 1952.4, and 29 CFR 1956.10(i), to adopt regulations for recording of occupational injuries and illnesses that are substantially identical to the requirements of revised 29 CFR 1904. As a result, the revised provisions of Article 2, Sections 14300 through 14300.47 took effect on January 1, 2002.

DLSR now proposes to revise Sections 14004 and 14005 by modifying the Employer's Report, the Form 5020, or an equivalent approved by DLSR, to include the additional instructions that are required by Section 14300.29 and Appendix F to protect the confidentiality of the employee, and to include two questions that are now required by Appendix F. The revised form would fulfill the requirements for a form equivalent to the Cal/OSHA Form 301, Appendix C, as specified by Section 14300.29(b)(4).

To implement the new provisions, DLSR proposes to repeal Form 5020 Revision 6 in Section 14004, and replace it with Form 5020 Revision 7. Revision 7 retains the content of Revision 6, but adds the instruction to the custodian of these forms to protect the confidentiality of the employees whose personal information has been recorded on the forms. DLSR also proposes to specify in Section 14005 that this instruction must appear in the form 5020 that is reproduced and adopted by insurers and self-insured employers. The instruction is as follows:

ATTENTION: This form contains information relating to employee health and must be used in a manner that protects the confidentiality of employees to the extent possible while the information is being used for occupational safety and health purposes. Reference: Section 14300.29 (b)(6)-(10).

Shaded boxes indicate confidential employee information as listed in CCR Title 8 14300.35(b)(2)(E)2.

Confidential information may be disclosed to the employee, former employee, or their personal representative (8 CCR 14300.35), to others for the purpose of processing a workers' compensation or other insurance claim; and under certain circumstances to a public health or law enforcement agency or to a consultant hired by the employer (8 CCR 14300.30). 8 CCR 14300.40 requires provision upon request to certain state and federal workplace safety agencies.

Revision 7 also contains two questions that are not in Revision 6. These are:

1) Was the employee treated in an emergency room? (Yes or No)
2) Was the employee hospitalized overnight as an in-patient? (Yes or No)

Revision 7 also has reformatted information that facilitates the process of protecting an employee's confidentiality.

The proposed revisions to Sections 14004 and 14005 will enable employers and insurers to utilize a form that functions as a reporting form for the workers' compensation process, and as the Cal/OSHA Injury and Illness Incident Report Form 301. This will reduce the paperwork burden of the regulated public.

More Information

The full text of the proposed regulations, and all information upon which the proposed regulations are based, including an initial statement of the reasons for the proposed regulations, are available upon request. Inquiries concerning the proposed regulations, including questions regarding the substance of the proposed regulations, may be directed to:

Robert Nakamura, Senior Industrial Hygienist
Department of Industrial Relations
Division of Occupational Safety and Health
455 Golden Gate Avenue, 10th Floor
San Francisco, CA 94102
Phone: (415) 703-5160
Fax: (415) 703-5114

The designated back-up contact person is:
Ramon Cruz, Research Manager
Department of Industrial Relations
Division of Labor Statistics and Research
455 Golden Gate Avenue, 8th Floor
San Francisco, CA 94102
Phone: (415) 703-4757
Fax: (415) 703-3029

The Division's rulemaking file on the proposed regulations is open for public inspection Monday through Friday, from 8:00 a.m. to 5:00 p.m., at 455 Golden Gate Avenue, 10th Floor, San Francisco, California. Interested parties may obtain copies of the Initial Statement of Reasons, the actual text of the proposed regulations, this notice, and the final statement of reasons, (once it has been prepared pursuant to Government Code Section 11346.9(a)) from the Division representatives named above, or from the Division's website >www.dir.ca.gov/DOSH<. Click on "Proposed Regulations."

Cost or Savings of the Proposed Regulations

Costs or Savings to State Agencies: No costs or savings to state agencies will result as a consequence of the proposed regulations.

Impact on Housing Costs: The proposed regulations will not significantly affect housing costs.

Impact on Businesses: The Division has made an initial determination that the proposed regulations will not result in a significant statewide adverse economic impact directly affecting businesses, including the ability of California businesses to compete with businesses in other states.

Cost Impacts on Representative Private Persons or Businesses: The Division is not aware of any cost impacts that a representative private person or business would necessarily incur in reasonable compliance with the proposed regulations.

Costs or Savings in Federal Funding to the State: The proposed regulations will not result in costs or savings in federal funding to the State.

Costs or Savings to Local Agencies or School Districts: No costs to local agencies or school districts are required to be reimbursed. See explanation under "Determination of Mandate".

Other Nondiscretionary Costs or Savings Imposed on Local Agencies: The proposed regulations do not impose nondiscretionary costs or savings on local agencies.

Determination of Mandate

The proposed regulations do not impose a mandate on local agencies or school districts. The Division has determined that the proposed regulations do not impose a mandate requiring reimbursement by the State pursuant to Part 7 (commencing with Section 17500) of Division 4 of the Government Code because the proposed regulations do not constitute a "new program or higher level of service of an existing program within the meaning of Section 6 of Article XIII B of the California Constitution."

The California Supreme Court has established that a "program" within the meaning of Section 6 of Article XIII of the California Constitution is one which carries out the governmental function of providing services to the public, or which, to implement a state policy, imposes unique requirements on local governments and does not apply generally to all residents and entities in the state. (County of Los Angeles v. State of California (1987) 43 Cal.3d 46.).

The proposed regulations do not require any local agency to carry out the governmental function of providing services to the public.

Effect on Small Businesses

It has been determined that the proposed regulations may affect small businesses.

Assessment.

The adoption of the proposed regulations will neither create nor eliminate jobs in the State of California nor result in the elimination of existing businesses or create or expand businesses in the State of California.

Consideration of Alternatives.

The Division must determine that no reasonable alternative considered by the Division, or that has been identified and brought to the attention of the Division, would be more effective in carrying out the purpose for which the action is proposed or would be as effective and less burdensome to affected private persons than the proposed action.