Every once in a while, the California Occupational Safety and Health Appeals Board publishes a Decision After Reconsideration that makes employers wince and leaves attorneys scratching their heads. On March 12, 2026, the Appeals Board did just that when it issued KPRS Construction Services, Inc., turning the employer’s full victory at trial to a full defeat on appeal.
Quick Hits
- General contractors must conduct inspections across the entire jobsite—including hard-to-access areas and spaces where only subcontractors are working.
- An employer’s unawareness of a hazard does not insulate it from liability for failing to identify, evaluate, and correct that hazard.
- Employers may want to investigate the safety records of all subcontractors, not just those with whom they have direct contracts.
Facts
KPRS Construction Services, Inc., of Brea, California, is a general contractor for commercial construction projections. As a general contractor for large projects, it routinely engages multiple subcontractors, who then engage subcontractors themselves.
In July 2018, KPRS was building a 500,000 square foot refrigerated warehouse with an adjacent 25,000 square foot mechanical building. KPRS contracted with A.G. Construction to complete the concrete work, Angle Iron Works to complete structural iron work, and C & L Refrigeration to complete HVAC work.
At some point, and unknown to KPRS, Angle Iron Works further subcontracted with G.B. Metal Fabricators to cut openings on the roof of the mechanical building.
The structural plans called for no openings greater than six inches to be cut in the metal roof of the mechanical building until the cement roof had been poured and cured.
On July 26, 2026, A.G. Construction crews began loading a metal roof deck onto the structural steel of the mechanical building, which necessitated employees of KPRS’s subcontractors to work on the roof. The Appeals Board later noted that this was the trigger for KPRS’s obligation to inspect the roof.
On July 27, 2018, G.B. Metal, a subcontractor two levels below KPRS, cut a two-by-three-foot opening in the building’s metal roof deck and covered it with plywood. At some unknown point before the injury, the cover moved off the opening.
KPRS did not inspect or monitor the crews working on the approximately 25,000 square foot mechanical building roof at any time during the eleven days that its subcontractors’ employees were on the roof.
On August 7, 2018, Jorge Antonio Chavez Soto, an employee of A.G. Construction, was working on the roof clearing debris when he either picked up the unmarked plywood cover or stepped onto it. He fell approximately twenty-seven feet to the cement floor below, suffering serious injuries.
Following an investigation, the California Division of Occupational Safety and Health (Cal/OSHA) issued two Serious Accident-Related citations to KPRS under the multi-employer theory of liability as the controlling and correcting employer. The citations alleged violations of Title 8, section 1509(a) (failure to implement an effective Injury and Illness Prevention Program (IIPP)) and section 1632(b)(1) (failure to guard floor/roof openings), with proposed penalties of $22,500 for each citation.
Vindication at Trial
On January 12, 2024, the administrative law judge (ALJ) vacated Citation 1 because Cal/OSHA could not prove that it ever requested or reviewed KPRS’s IIPP that it alleged KPRS failed to effectively implement. The ALJ took a linear approach to this citation, holding that the substance of an employer’s IIPP is a necessary element to be able to find that an employer failed to effectively implement the same IIPP.
The ALJ vacated Citation 2 because KPRS met its burden to prove the “due diligence” affirmative defense available to controlling employers on multi-employer worksites.
Heartbreak on Appeal
On March 12, 2026, the Appeals Board disagreed with the ALJ’s analysis and reversed on all key issues.
Citation—Failure to Implement IIPP
The Appeals Board held that Cal/OSHA is not required to evaluate the substance of an employer’s actual IIPP before issuing a citation for a failure to effectively implement its IIPP. Essentially, an employer’s failure to inspect and identify a hazard is sufficient to find that the IIPP, no matter how perfectly drafted, was not effectively implemented.
Interestingly, KPRS, rather than Cal/OSHA, moved its IIPP into evidence. KPRS then presented a novel argument that it should be relieved of liability because the Cal/OSHA failed to comply with Labor Code section 6314.5, which KPRS argued created a requirement for the Cal/OSHA to evaluate employers’ IIPPs when they open inspections. The Appeals Board held that Labor Code section 6314.5 does not create an affirmative defense for employers when Cal/OSHA fails to comply.
The Board rejected KPRS’s argument that it had no obligation to inspect the mechanical building roof because access was limited and the structural plans did not call for openings to be cut until the concrete was poured and cured.
Instead, the Board held that as soon as employees were on the roof, KPRS was obligated to inspect that area of the worksite. Moreover, KPRS’s own IIPP (again, admitted at trial by the employer) required “daily safety inspections of the work area.”
The Board seemed to perceive KPRS’s decision not to inspect the roof as one of deliberate ignorance, reasoning that permitting the lack of knowledge defense here “would incentivize employers to conduct inadequate inspections.”
Citation 2—Failure to Guard Floor/Roof Openings
The Appeals Board also reversed the ALJ’s finding that KPRS satisfied the due diligence defense. Applying the five-factor test from McCarthy Building Companies with no deference to the ALJ’s determinations, the Board found that KPRS failed to establish three of the five factors. The Appeals Board helpfully laid out the factors below:
- whether the controlling employer conducted periodic inspections of appropriate frequency;
- whether the controlling employer implemented an effective system for promptly correcting hazards;
- whether the controlling employer enforced the other employer’s compliance with safety and health requirements with an effective, graduated system of enforcement and follow-up inspections;
- whether the controlling employer researched the safety history of the subcontractor; and
- whether the hazard was latent and unforeseeable.
The Board found that KPRS did not meet factors (a), (d), and (e).
With regard to factor (a), KPRS did not conduct periodic inspections of appropriate frequency because it failed to inspect the mechanical building roof, for at least eleven days, while multiple crews were working there. It is possible that the Appeals Board would have come to a different conclusion on this factor if KPRS conducted a physical inspection of the roof at some point while its subcontractors’ employees were working on the roof before the opening was cut, even though it still may not have identified the hazard.
With regard to factor (d), the Board found that KPRS did not adequately research the safety history of its subcontractors. KPRS was the general contractor and only vetted direct subcontractors. It did not investigate the subcontractors below its direct subcontractors, what it called “sub-tier” contractors like G.B. Metal. Additionally, this was the first job for which KPRS contracted with Angle Iron and accordingly they did not have a basis for trusting Angle Iron’s safety practices. KPRS’s decision not to inspect the roof before the accident “reflect[ed] an “unearned confidence in Angle Iron.”
Finally, with regard to factor (e), the Board found that the hazard was not latent and unforeseeable because employees were working on the roof for eleven days and the unsecured opening existed for ten of those days. Again, it is not clear if the Board would have come to a different conclusion had KPRS conducted an inspection on the first day the employees were on the roof.
The Board affirmed both citations and assessed total penalties of $45,000.
Key Takeaways for Construction Employers
This decision underscores several important lessons for general contractors and controlling employers in California:
1. Inspections must cover everywhere employees are working. Employers cannot carve out exceptions for areas that are difficult to access or where only subcontractors are working. If employees of any contractor or subcontractor are working in an area, the general contractor’s IIPP obligations extend there. Reliance on plans and project scheduling alone is insufficient.
2. Due diligence is required to establish a valid “lack of knowledge” defense. An employer’s unawareness of a hazard does not insulate it from liability for failing to identify, evaluate, and correct that hazard.
3. All subcontractors, even those with whom a subcontractor contracts, are the general contractor’s responsibility. Employers may want to consider vetting the safety records of all contractors who will be working on a jobsite, not just those with whom they have direct contracts.
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