During June, 2020, in the middle of the COVID-19 pandemic that was sweeping the country (and world), CAL/OSHA made a slight change to the requirements for the Injury and Illness Prevention Program (IIPP) regulation. This new change added language about ensuring all employees have access to the written IIPP language. It is placed in item 8 under the CAL/OSHA 3203 regulation (full language can be found HERE). It reads as follows:

(8) Allow employee access to the Program.
(A) As used in this subsection:
1. The term “access” means the right and opportunity to examine and receive a copy.
2. The term “designated representative” means any individual or organization to whom an employee gives written authorization to exercise a right of access. A recognized or certified collective bargaining agent shall be treated automatically as a designated representative for the purpose of access to the Program.
3. The term “written authorization” means a request provided to the employer containing the following information:
a. The name and signature of the employee authorizing a designated representative to access the Program on the employee’s behalf;
b. The date of the request;
c. The name of the designated representative (individual or organization) authorized to receive the Program on the employee’s behalf; and
d. The date upon which the written authorization will expire (if less than one (1) year).

(B) The employer shall provide access to the Program by doing one of the following:1. Provide access in a reasonable time, place, and manner, but in no event later than five (5) business days after the request for access is received from an employee or designated representative.

a. Whenever an employee or designated representative requests a copy of the Program, the employer shall provide the requester a printed copy of the Program, unless the employee or designated representative agrees to receive an electronic copy of the Program.

b. One printed copy of the Program shall be provided free of charge. If the employee or designated representative requests additional copies of the Program within one (1) year of the previous request and the Program has not been updated with new information since the prior copy was provided, the employer may charge reasonable, non-discriminatory reproduction costs (per Section 3204(e)(1)(E)) for the additional copies. or,

2. Provide unobstructed access through a company server or website, which allows an employee to review, print, and email the current version of the Program. Unobstructed access means that the employee, as part of his or her regular work duties, predictably and routinely uses the electronic means to communicate with management or coworkers.

(C) The Program provided to the employee or designated representative need not include any of the records of the steps taken to implement and maintain the written Program.

(D) If an employer has distinctly different and separate operations with distinctly separate and different Programs, the employer may limit access to the Program (or Programs) applicable to the employee requesting it.

(E) The employer shall communicate the right and procedure to access the Program to all employees.

(F) Nothing in this section is intended to preclude employees and collective bargaining agents from collectively bargaining to obtain access to information in addition to that available under this section.

This new requirement was largely missed by many in California as they had established their IIPPs under the old language that had been in place since the 1990s. Most employers would have no problem with giving their workers a copy of or access to their written IIPP, but now they have to write a paragraph IN their IIPP that states exactly that or be cited for not following the law. It is not clear that this new requirement mandates a new, written passage in the IIPP itself, but that is exactly how CAL/OSHA is enforcing it right now.

I have one client who recently had CAL/OSHA come onto their site due to a compliant about toilet facilities and access to water under the Heat Illness Prevention Program regulation. After walking the site and interviewing multiple employees, they could not find the employer at fault for the complaint items. BUT, after taking all of their allotted six months to issue a citation, CAL/OSHA decided to cite them for not having language in their IIPP that describes how they will give their employees access to it. It was a General Citation in the amount of $135. This could be the cheapest OSHA citation I have ever seen! Over something that had NOTHING to do with ANY of the alleged complaint items related to toilets or water. Even though no employee was denied a copy or access to my client’s IIPP (they would have gladly given a copy to any employee), CAL/OSHA cited them for merely not having this new language inserted into it. We are currently in the process of contesting this citation, but it is recommended that everyone doing business in California add this additional language to their IIPP to ensure it does not result in a future citation.

Lesson learned: It is best right now to just add the new language to your IIPP about providing employee access to your program. State whether you will give them a physical copy or provide them unobstructed access to a company server and make that a talking point during your new hire orientation where you cover the contents of your IIPP with new employees for the first time. Send out a refresher email or toolbox talk to educate all other existing employees about the procedure to access a copy of your IIPP and then you should be in compliance with the new requirements.