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WEEKLY NEWSLETTER August 17, 2011 Volume 17 Issue 33 Could Cal/OSHA Subpoena Workers’ Comp Carriers’ Inspection Records? California employers are concerned that Cal/ OSHA will use as precedent a federal court’s decision in Illinois that workers’ comp insurance carriers can be compelled to hand over documents to the federal Occupational Safety and Health Administration about their clients. The Illinois case stems from OSHA’s attempt to investigate the deaths of two workers at a grain mill operated by Haasbach LLC. As part of that investigation, OSHA issued a subpoena to Grinnell Mutual Reinsurance Company, Haasbach’s workers’ comp carrier, to produce documents and testify about inspections and reports it preThe court said that insurers could be ordered pared for the company. It refused. legally to provide Fed-OSHA with findings from safety inspections, loss control reports and/or Grinnell maintains that Haasbach’s operations correspondence between the carrier and the were not under OSHA’s jurisdiction and that the employer. The decision came in a case where a carrier would be irreparably harmed by turning workers’ comp carrier disputed OSHA’s right to over the requested documents that it claims are privileged under Illinois law. It also objected to the documents in question. the subpoena, noting that requested documents In California, Cal/OSHA officials say the agency could find their way into the hands of the plainhasn’t in the past looked to workers’ comp car- tiff in a pending lawsuit related to the accident. riers to help complete its investigations. Cal/ OSHA’s investigations focus on the employer’s Grinnell asked for a stay of the order at least until own records and the worksite. But it is clear that Haasbach exhausted its administrative challengthis doesn’t mean that it won’t attempt to obtain es, including a final determination of whether it is even under OSHA’s jurisdiction. It also conrecords from carriers in the future. tends that enforcing the subpoena would cause “Cal/OSHA does have broad power to obtain a chilling effect that would discourage busirecords, but the Division of Occupational Safety nesses from allowing insurers to conduct safety and Health has never attempted to subpoena inspections if the findings ultimately could be such records,” according to Department of In- used against them by OSHA or in litigation. dustrial Relations spokeswoman Erika Monterroza. “So it hasn’t been tested in court and we But in ordering the carrier to comply, Judge don’t want to express any opinion on untested Philip Reinhard from the U.S. District Court for authority.” the Northern District of Illinois noted that under federal law — 29 U.S.C. section 657(b) — OSHA Whether this will be enough to insulate the Cali- can “require the attendance and testimony of fornia market from the “chilling effect” of the Il- witnesses and the production of evidence unlinois decision is still to be seen. der oath” as part of an inspection and/or investigation. Judge Reinhard also denied Grinnell’s We protect the people who build California. Will my supplies be here on time? Am I going to get this bid? We understand those on the job in California have more on their mind than workers’ compensation insurance. So let us put your mind at ease: you can count on the strength and stability of State Fund. We’ve never pulled out of the market due to an economic downturn, and we never will. Visit today to learn about the 6% discount on premiums we offer eligible SBCA members. Your individual business may be eligible for even more discounts. Thanks for reading…we’ll let you get back to work. Together, we’ll help keep California working. request for a stay, noting that its claim of irreparable harm is unconvincing. “It simply argues that the information turned over to OSHA may become public or be transmitted to the state court plaintiff. Why this would happen or why nothing can be done to prevent it short of refusing to give OSHA the information in the first place is not explained,” Reinhard wrote. “Grinnell has not shown that it cannot receive the protection it seeks, assuming it is entitled to protection, in the OSHA proceeding or from the state court.” Reinhard also downplayed the argument about a potential chilling effect. “Assuming for the sake of argument that this is true, correcting that problem is a policy decision to be made somewhere other than in the federal courts,” he concluded. Source: Cal/OSHA Reporter Stop by the SBCA office and pick up FREE EAR PLUGS Safety product is available to SBCA members and their employees. -SBCA Safety Committee In This Issue Could Cal/OSHA Subpeona Records SBCA Calendar Highlights SBCA Board of Directors Nominations SBCA Continues Dialog with City Tailgate Safety Topic Safety Training for Supervisors Kalb’s Q & A for Contractors Accident Investigations SBCA Online Planroom Report SB City Building Permits South County Building Permits North County Building Permits Santa Barbara Contractors Association Celebrating Over 60 Years of Service to the Community Page 1 Page 2 Page 3 Page 7 Page 9 Page 14 Page 16 Page 16 Page 22 Page 31 Page 34 Page 56

SBCA Weekly Newsletter 08/17/11

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