Director’s Decision on Appeal of a County Agricultural Commissioner Decision (Hoag Hospital, Docket Number 201)

The Director’s decision on Hoag Hospital’s appeal of the $700 civil penalty levied by the County Agricultural Commissioner of the County of Orange (Orange CAC) is enclosed. The Director reversed Orange CAC’s action and penalty, and his decision became final on August 19, 2015.

The Orange CAC found Hoag Hospital in violation of Title 3 of the California Code of Regulations (3 CCR), section 6738(b), Personal Protective Equipment, which requires employees wear protective eyewear when applying a pesticide by hand. An employee of Hoag Hospital was using an antimicrobial hand wipe when the liquid splashed into the employee’s eye. The product’s labeling only required protective eyewear in specific situations, which did not exist in this case. Therefore, the Orange CAC relied on 3 CCR section 6738(b) to require the employee to wear protective eyewear.

Hoag Hospital appealed the Orange CAC’s civil penalty decision on the basis that under 3 CCR 6720(c), Safety of Employed Persons, it was exempt from complying with 3 CCR section 6738(b) because it instead complied with the sections of Title 8 of the California Code of Regulations (8 CCR) concerning employee protection, explicitly listed as comparable in 3 CCR section 6720(c). Hoag Hospital presented this argument at the hearing. The hearing officer did not address the exemption issue in the proposed decision, nor did the CAC when adopting the proposed decision. Therefore, as a matter of law, the Director had to make a determination about the issue. The Director independently determined that in this specific case, based on evidence presented in the record of the hearing, Hoag Hospital qualified for the exemption in 3 CCR 6720(c) because the employee was using an antimicrobial agent only as a sanitizer, disinfectant, or medical sterilant and Hoag Hospital complied with 8 CCR sections 3380 through 3385.

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This decision addresses the following concept:

• Under 3 CCR section 6720(c), Safety of Employed Persons, an employer is exempt from complying with 3 CCR sections 6738 through 6738.4 if the employee is using an antimicrobial agent only as a sanitizer, disinfectant, or medical sterilant, and the employer complies with all of the listed sections of Title 8, in this case, 8 CCR sections 3380 through 3385, not just one specific section.

Please make this information available to your staff as a reference in preparing and processing cases. If you have any questions, please contact the Enforcement Branch Liaison assigned to your county.

Sincerely,