By Craig S. Denney and Marian Lee*
“The ideal man bears the accidents of life with dignity and grace, making the best of circumstances .
“They're funny things, Accidents.You never have them till you're having them.”
Eeyore, Pooh's Little Instruction Book
Here is the scenario. You are an entrepreneur and have just closed a business deal to sell your manufacturing company after a decade of building it up as a profitable enterprise. The transaction terms are favorable and the buyer is reputable. You are elated that you are finally able to cash in on your considerable investments of time and effort. All that is left to do is clear out the premises and consider your next business opportunity with your new influx of capital.
Then the unexpected happens. While several of your employees are removing heavy equipment from the premises, you get a frantic call. One of your long time employees has been killed in a freak accident. There are no witnesses so confusion abounds as you try to piece together the details. It appears that the employee was standing on a piece of heavy equipment when it started moving. Tragically, it seems that he lost his balance or slipped and fell under the equipment and was crushed.
As you are trying to calm your distraught employees, another person arrives at the business property. She identifies herself as an investigator from the California Division of Occupational Safety and Health (also known as “Cal OSHA”). She starts interviewing people and asks you the business owner about your Injury Illness Protection Plan (also known as “IIPP”). You think to yourself: what exactly is an IIPP ? After more questions by the investigator, you realize you do not have an IIPP. Bad news. You are informed that this is a Cal OSHA violation: not only will you be fined, but the California Department of Labor will also be notified. Maybe it's time to call your lawyer.
A few weeks ago, you thought you would still be basking in the glow of closing the sale of your company. Instead, now you are wondering how to respond to a formal Cal OSHA investigation – and perhaps more challengingly, how to piece together an IIPP.
Cal OSHA Injury Illness Prevention Plan (IIPP) Enforcement
In 2008, the most cited violation by Cal OSHA was “No IIPP developed in writing and implemented.” When an employer does not have an IIPP in place and a death or severe injury occurs, Cal OSHA may seek to impose significant penalties due to the serious nature of the incident.  Penalties may vary depending on the company's industry. For example, California dairies must have IIPPS that include preventions for heat illness, or face fines that typically start at $3000 and can be as high as $70,000 for each violation. 
Even if an IIPP is developed later as a response to the Cal OSHA investigation, the employer will likely be assessed a fine for not having an IIPP established at the time of the accident. Moreover, Cal OSHA may choose to notify the California Department of Labor, which can open up its own investigation of the accident.
This article provides suggestions for the elements of an IIPP that all California employers should consider putting in place to avoid running afoul of Cal OSHA. Prevention and planning ahead is of key importance. Although current requirements for establishing and maintaining IIPPs date back to 1991, many employers remain unaware of the requirements until an employee is injured and the company finds itself as the subject of an investigation. 
For starters, an IIPP generally must be in writing . An employer must identify the people responsible for implementing the program, perhaps by specifying who will assign responsibilities for safety training and compliance.
Next, outline a system for ensuring that employees comply with safe and healthy work practices. This should include recognition of employees who follow the practices, training and retraining programs, and disciplinary actions.
A system for communicating to employees about issues that relate to their safety and health should also be set up. Such a system should be in a readily understandable form and arranged so that employees can alert the employer of hazards without fear of reprisal. Employers can meet this requirement by forming a safety and health committee that: 1) meets at least quarterly; 2) makes available records of committee meetings; 3) reviews worksite inspections, occupational accidents and investigations of alleged hazardous conditions; 4) submits recommendations; and 5) verifies with Cal OSHA abatement actions stemming from citations.
This requirement may seem daunting, especially to smaller organizations with limited resources. However, an exception applies to employers with fewer than 10 employees; oral instructions may be given to employees on general safe work practices with specific instructions on hazards unique to the employees' job assignments.
Moreover, IIPPs must specify p rocedures for identifying and evaluating workplace hazards, including scheduled inspections. Such methods should operate alongside a procedure to investigate occupational injury or illness. Since mitigating existing risks is also important, IIPPs should outline procedures for timely correction of unsafe or unhealthy conditions.
Another element to a successful IIPP is detailing training and instruction plans. For example, training should be given when the IIPP is established and when new employees, job assignments, or hazards are introduced to the working environment.
Finally, keep records of the steps taken to implement and maintain the IIPP, including records of inspections to identify unsafe conditions and work practices, and documentation of employees' safety and health training. Both types of records should be maintained for at least a year. However, there are several exceptions for record-keeping that may apply to employers with fewer than 10 employees, or for employers with fewer than 20 employees in industries that are not considered high-hazard by the Department of Industrial Relations.
Dealing with an employee's serious injury or death can be an emotionally fraught challenge. But the situation can grow to be even more complicated when it is apparent that preventative measures have not been set up and Cal OSHA gets involved. The key to meeting Cal OSHA requirements is to have an attorney set up an IIPP before problems arise. By establishing and maintaining a comprehensive IIPP, an employer can avoid inadvertently violating state standards and instead concentrate on the business's core competencies.
*Craig S. Denney is counsel at Downey Brand LLP. He is board certified in criminal law by the National Board of Trial Advocacy. He is a former federal prosecutor who represents corporate and individual clients in white collar criminal defense and government regulatory matters in California and Nevada. Marian Lee is a third year law student at UCLA Law School. She served as a summer associate in Downey Brand's Sacramento office.
 See http://www.dir.ca.gov/dosh/dosh_publications/iipp.html
 See California Dairies Inc., May 2009 newsletter, p.4, and Teamsters SFO Ground Safety Report, Apr-May-Jun 2009, by Ralph Ortiz, p. 4.
 See http://www.dir.ca.gov/dosh/dosh_publications/IIPP.html#1
Please note that the information contained in this newsletter is not intended to provide specific legal advice. You should consult with an attorney and not rely on any information contained herein regarding your specific situation.