Cal/OSHA’s Serious Accident-Related Citations: A Practical Guide for Employers

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Karen Tynan: Hello, everyone, and thank you for joining us for the Ogletree Deakins podcast. My name is Karen Tynan, and I’m a shareholder in the Sacramento, California office, and chair of the Workplace Safety Practice Group. And here with me today is my esteemed colleague, Kevin Bland. He’s an Orange County shareholder and one of my besties at the firm, I think I’ll say. We’re talking about Serious Accident-Related citations, sometimes called SARs, S-A-R-S. So, Kevin, let’s talk first. What does serious…well, let’s break it apart. What does accident-related mean?

Kevin Bland: Well, first of all, accident-related is not a classification, right?

Karen Tynan: Right.

Kevin Bland: It’s a modifier to a classification. It’s technically called a characterization. So, people get mixed up in that all the time. So that’s where you have a serious violation that has this accident-related characterization. And what is meant by that? It means that basically, a serious violation, what you are alleged to have done wrong by not following the regulation, has a causal nexus between the violation and the serious injury. A causal nexus.

So, I drop a pen on the floor, and you’re not allowed to drop pens on the floor, and the pin breaks. There is a causal connection for me violating dropping the pin on the floor, because if I hadn’t dropped the pin, it wouldn’t have broken. Kind of but for. But it goes on, because you could have multiple serious accident-related. They say, “Well, how can all of them cause it?” Right?

Karen Tynan: Right.

Kevin Bland: So, it doesn’t have to be the only cause. There’s cases out there that talk about more likely than not was a cause of the injury. And then it goes on to state that the division need not show that the violation was the only cause of the injury.

So, for example, let’s say you have a lockout tag-out violation. The person didn’t lock out properly, and the area in which they stuck their hand in wasn’t guarded properly, and they both get issued. And you’re arguing, “Hey, the guarding is not the issue, it wasn’t locked out properly.” Or “The lockout, it didn’t matter because there should be the guarding.” Well, they both have a potential in there. And so, both could be argued that they both contributed to the injury as a result of that violation.

And that one illustrates it a little bit probably too clear there. Sometimes, it’s more murky. My favorite is, failure to train. And they say that was the cause. And so, in a case like that, we’re arguing about the failure to train wasn’t the cause because the guy had been working on this for 25 years, we just didn’t have it documented. When you ask him, he knew all the things he was supposed to do, or she was supposed to do. So, those are arguments you’re going to be making about whether it’s cause–

Karen Tynan: I hate to say, I’m glad you brought up the training. I was going to softball that question to you, Kevin. Because when I see a SAR, a Serious Accident-Related that is for training, I think to myself, “Well, I think the inspector maybe missed an opportunity,” because if you’re going to issue a SAR and claim that there’s this causal connection, this causal nexus, it really needs to be something like the guarding, or the lockout tag-out, or the, let’s say, heat illness, failure to provide water, things like that. When you get to training, it’s just a more difficult proposition, I would say.

Kevin Bland: Right. And sometimes, the one that’s even worse than…it’s one thing, they weren’t trained, never done this before. Maybe that could be an issue, but 99.99% of the time, one of two things. Either that they’ve been trained, and it wasn’t documented, or they had been trained and it’s documented, but because they did something wrong outside of their training, it was ineffective training, and that was what they’re trying to bootstrap into an SAR. And that gets very frustrating. But that’s getting a little bit off of what does it mean–

Karen Tynan: Right. But I think it’s helpful because employers might see a serious accident-related citation for training and think, “Ooh, they got me. This employee, if he had been properly trained on lockout tagout–“

Kevin Bland: They say, “No, we got Karen, so it’s no big deal. We got it.”

Karen Tynan: There you go. I like it. So, we’ve talked about accident-related. Let’s take a minute and just remind people about what is a serious citation in California?

Kevin Bland: So, what the law says is a serious violation exists in the place of employment if the division demonstrates that there’s a realistic possibility that death or serious physical harm could result from the actual hazard created by the violation. I’m going to break this down just a little bit. Now, this is a new 6432 labor code that’s created this design. Before, it used to be substantial probability based on the violation, assuming an accident happened.

So, I think it’s very important…I think we miss this. When I say we, the industry, Cal/OSHA, everybody misses this. One, let’s say there wasn’t an accident. There wasn’t on this one, we’re just giving you a serious. And let’s say it’s a guarding. And we talked about that… I was involved in the negotiation of this language that was born out of federal OSHA said something similar, we had to adopt something similar here.

So, there’s a key phrase in here, actual hazard created by the violation. So, you have to analyze what the actual hazard is. Let’s take guarding, for example. You got a machine, everybody works on the front side of it. On the backside, there is no back on it, and there’s some pulleys in there. So, they issue a citation for guarding. And so, is there a realistic possibility that a serious injury would result from the actual hazard, the guard missing? When it’s on the back of the machine and people can’t go back there, don’t go back there.

I know a safety professional can say, “Well, guarded by isolation.” Let’s forget about that for a second. Because the idea is under this one, you have to analyze it in the context, would it be within the prediction that it would be the reasonable…that the bounds of human reason, someone would go…you can’t speculate, “Well, somebody might go back there because there was rat poop, and clean it up, and stick their hand in the machine.” That’s not realistic possibility.
So, you have to look at the actual hazard and where it is. And this was an example. Amy Martin, rest in peace, used to be the Chief Counsel at Cal/OSHA when we were doing it. And then we went on a roadshow, and this was the example you…that example seems to have gone away. Because the old rule said substantial probability assuming an accident. So, in the old way, it was substantial probability, but you had to assume someone did stick their hand into the gears.

Karen Tynan: Yes.

Kevin Bland: So that’s a totally different analysis now. So, it’s very important for folks to know about that and think about that whenever they’re litigating and cross-examining an inspector, all those things. It’s a little more difficult when there was an actual accident because then they’re going to say, “Well, somebody got hurt, so therefore.” But that isn’t what the law…it could also be that it was out of…what they did was also outside the bounds of a human prediction.

Karen Tynan: I like that you use a guarding example, because something that might be analyzed in a guarding example is, “Well, how often do the employees have to clean that area? Do the employees have to remove the guard to reset the machine? Do the employees have to make adjustments to the machine? It really can be a bit fact-intensive.” And you and I analyze it in a fact intensive way. But what I see sometimes is with inspectors, it’s a little more superficial. And they’ll say, “Well, if someone stuck their hand in there and get it chopped off.”

Well, but how is this machine being used? What is the guarding protecting people from? Are there particular blades? Does the machine ever even get opened up?

Kevin Bland: Yeah. Yeah, exactly. Exactly. So that’s important. And then the other thing I have that a lot of times clients have never had a citation. Been in business 20 years, this is the first time. And they want to know what’s a serious accident? I like to analogize to traffic ticket. A general violation is like you’ve rolled through a stop sign, and you got a ticket. Serious is more like a reckless driving, speeding over 100. And then a serious accident related is more like a DUI, and maybe run into somebody in the crosswalk while you were drinking.

Karen Tynan: It’s bad.

Kevin Bland: Yeah. And I know we’ll get in later on what effects it can have, but that’s the levels. And then we can get into things beyond this like willful and repeat and all that, but we’re not going to do that today.

Karen Tynan: And I do see, we’ve given some real-life examples around lockout, tag-out and guarding. I see that in heat illness citations where an employee is hospitalized, even if it may be unclear whether the heat illness was related to, say a medical condition, and it wasn’t hot that day, or the person did get all their water and break, whatever it is. I see heat illness citations invariably issued as serious accident related, Kevin.

Kevin Bland: Yeah. No, and I agree. And so that’s why it’s important to get those medical records, right?

Karen Tynan: Right.

Kevin Bland: I had one where similar situation, they fell off of a ladder. Well, when the autopsy come back, he had had a heart attack.

Karen Tynan: Right.

Kevin Bland: So, there’s no violation there. Right?

Karen Tynan: Exactly.

Kevin Bland: And by the way, that takes some time, and they’re already neck deep and they’re digging through everything. But that could be a defense to the whole violation because there’s a medical reason that this occurred. But like you said, in heat illness, sometimes were they dehydrated because they didn’t drink, or were they dehydrated because they had a medical condition, or I’ve had where they passed out for some unknown or had a heart attack.

Karen Tynan: Right. Exactly. And so, we see, and this is 2026, serious accident relateds are very difficult to settle. The penalties tend to be high. When we see the penalty calculation sheets, they’re pretty much the serious accident relateds are $18,000. Why is that, Kev? Explain that to our audience.

Kevin Bland: That’s a good question, Karen, because there are calculations that go in that say the extent, likelihood, history, good faith, it adjusts the penalty up and down. That’s why a straight serious is usually about half of what a serious accident related is, because you can consider those factors. The law does not allow you to consider all the factors. You can consider size. And by the way, once you’re over 100 employees, there is no size reduction.

Karen Tynan: No reduction.

Kevin Bland: Right?

Karen Tynan: Yes.

Kevin Bland: And so, I’ve seen them lately between $18,000, used to be all of them. Now they seem to be $18,000 or $22,500. But remember the amount has raised in time with inflation, that’s done automatically at the first of the year to match the Fed’s series. And so, they always start out with a base penalty for a serious at $18,000, and then go across the board. If they’re a small company, let’s say you have 90, it’s going to be 10% less. It’s going to be $17,900.

Karen Tynan: So serious accident relateds, the penalties have a lot of less flexibility. They’re going to be higher. Now, I find that they are more difficult to settle, to negotiate around, a lot of times because if you’ve had a serious accident related, you’ve had someone fall, you’ve had an amputation, or you’ve had a fatality. So much more difficult to negotiate a settlement. And Kevin, we pull data all the time. In California, probably 98% of the Cal/OSHA cases settle. We go to trial-

Kevin Bland: I would say it’s lower right now under these times.

Karen Tynan: And that’s just generically. But when we parse the data and we look at either repeat citations or serious accident related, those only settle about 80, 85% of the time. So, you’re more likely to have to go to trial on those cases. They’re just more difficult to settle. Maybe they’re more dynamic. You can have reasons for not settling those cases. What are your thoughts on that, as I’ve told you the data and teed this up for your thoughts?

Kevin Bland: Well, I’ll be brutally honest why I think they’re not settling, is because there used to be autonomy for the district managers, and then they would look at the evidence and figure it out. But because of the audit and because of the things that are going on politically, they have to go all the way to Sacramento. And let’s face it, the hardest case to settle, hardest case in the world is one.

Karen Tynan: One citation.

Kevin Bland: One citation, one serious accident-related citation, or one general. Two ends of the spectrum, both just as difficult to settle, because they claim their hands are tied on the serious accident related. Right?

Karen Tynan: Yes.

Kevin Bland: And so, trying to get permission to do that. The other thing politically, which looks better? To end up saying…maybe there isn’t the evidence there. And they would settle for a general. Or let’s say we have a valid defense, a valid lack of knowledge, due diligence defense that changes that to a general. It’s harder for them to explain to the folks that are criticizing them externally of how this went to that. It’s easy to explain you went to trial and lost. We gave it our best shot. We’re trying all of these.

So that’s what I think. And that’s just my humble political opinion that has happened now. Now that being said, we still settle some accident relateds, because I know I’ll get emails and texts. “We settled one yesterday. We settled.” I’m just saying it’s more difficult now because of that. And I think that’s why it’s more difficult.

Karen Tynan: So let me put the footnote in there, Kevin. You mentioned the audit. So, the audit came out in June, July 2025. There was an audit by the California government, the audit agency, and it audited Cal/OSHA. It was pretty scathing. And since that time, I hear from… We engage with District Managers, Cal/OSHA council inspectors all the time, that now there are four layers of approval for a settlement. Whereas let’s say in 2024, maybe I had a case out of Redding and it was a tree trimming–

Karen Tynan: Yeah. Any region, but let’s use a tree trimming case. But then I’m able to show the district manager, well, you know what? This person was trained. They had their fall protection on, but they deviated from the two-line rule that they were trained on. They were taking a shortcut that day. Their interview indicates they knew they deviated from the training. We have discipline records. Come on, we’ve got the Independent Employee Act defense. And we didn’t know they were deviating from their training that day.

Kevin Bland: Right. And if you are successful in Independent Employee Act defense, what happens to that citation?

Karen Tynan: Well, then it’s going to go away.

Kevin Bland: Right. Dismissed.

Karen Tynan: Right. And lack of employer knowledge gets you down to a general. So, when you have those discussions with a district manager, and a realistic discussion of what the testimony’s going to be and what the documents show, you could work out a settlement that could, I like the term meet in the middle. But now if you have four layers of approval for settlement, so the inspector has to agree, the district manager, the Regional Manager, legal, and the Head of Legal and the Head of Enforcement. Well, that’s a lot of layers.

Kevin Bland: Exactly. And think about this also, Karen, on that point. When you’re trying to explain why the case is bad, someone in that food chain might have messed up on issuing the citation. And so how hard do you think they argue?

Karen Tynan: Exactly.

Kevin Bland: And so, I found that to be difficult. That being said, we still settle some, but I have like you, we’ve been doing two, three trials sometimes in a week.

Karen Tynan: Yeah.

Kevin Bland: Feels like it. Yeah.

Karen Tynan: There’s definitely more trials now.

Kevin Bland: Here’s another thing while we’re on this, is settlement is just that. It’s a compromise. Yeah, you may win. We may win. Let’s compromise on something that probably we both don’t necessarily like, but we can live with it.

Karen Tynan: We can live with it. We don’t love it.

Kevin Bland: And so, we got away from that, I feel, in my humble opinion. It’s like an all or nothing. My favorite is where I get an offer on, there’s four serious and they say, “We’ll knock $1,000 off of each serious.” And then we get to the staff going to say, “Well, Your Honor, we made an offer to settle. I don’t know why.”

It’s no different than us. And then sometimes that is the case. Maybe theirs is ironclad and there shouldn’t be any. And maybe ours is ironclad. And we would open up with, “Hey, withdraw all three.” I had one, what’s today? Saturday. Had one Friday where we weren’t in a position to compromise. And then we were at a video settlement conference. In that context, they were serious, it did all get withdrawn. And by the way, I didn’t do it in my non-admissions clause either. And I won’t go into why, but you can figure that out. And I gave them a waiver of costs, which is no big deal. And so that does happen, but those are outliers. Usually, you can find something.

Karen Tynan: Yeah. And on these serious accident relateds, when the other side is saying, I call it plead to the sheet, like in the criminal courtroom. Well, then what’s my incentive not to just go to trial and make you work your butt off to get the equivalent of this? Compromising and settling means we both give up a little. And so, I’m glad you brought that up.

Now, I do want to just mention as we close out here, serious accident-related citations can have an interplay with workers’ comp cases, because maybe someone’s filed a serious and willful penalty. Or if you’ve got a civil case around product liability around the machine that was guarded or whatever, or premises liability, you’re at a warehouse that was a leased warehouse. And so that person may have a claim against a third party.

So, I just want employers to understand that these cases can be complex, but also there can be an interplay because of the actual injury with these other forums. And so, it can be a more elevated analysis and require a lot more collaboration with us and them to get to settlement.

Kevin Bland: Yeah. And I’m going to add one other thing too, that we see pre-quals for construction companies and some other entities, but mostly construction. And this is where Cal/OSHA sometimes. It’s a $5,000 serious, why are we ending up? Why are we doing it? Why don’t you just take it? It’s one citation. Well, pre-qual, because that $5,000 penalty on a record when you’re trying to bid on a $10 million project, and that’s what takes you out of the bidding because there’s four others. That’s why it’s so important to litigate the ones, especially, especially the ones that are not reported by good evidence and facts.

Karen Tynan: Right. The ability to bid on work I think drives a lot of our discussions with clients. I like that call out, Kevin. So, hey everybody, we’re going to close out on our Serious Accident Related podcast. Thanks for listening to Karen and Kevin today. Look for our blog articles on ogletree.com. And hey, don’t forget to check out our practice page, the Workplace Safety Practice Group on ogletree.com, and check out our webinars too. You can get the recorded webinars on ogletree.com. Thanks for listening.

Kevin Bland: Stay safe out there.

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