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Senate Bill 606 increases Cal/OSHA authority and adds new grounds for issuing citations

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United States Publication October 29, 2021

California Senate Bill 606 (SB 606), recently signed into law by Governor Newsom, expands the scope of the California Division of Occupational Safety and Health’s (Cal/OSHA) authority and puts employers at enhanced risk of incurring monetary fines.

The bill authorizes Cal/OSHA to issue citations to employers with multiple worksites for “enterprise-wide” violations; permits the issuance of citations for “egregious violations” which could result in multiple fines; gives Cal/OSHA the power to subpoena employers; and provides additional grounds for Cal/OSHA to seek injunctions and restraining orders.

The bill takes effect on January 1, 2022, giving employers a little over two months to analyze and amend their policies and procedures to reduce the risk of incurring citations and penalties.

Enterprise-wide violations for employers with multiple worksites

When an employer with multiple California worksites commits a citable violation, SB 606 imposes a rebuttable presumption that the violation is “enterprise-wide” if either of the following circumstances is met: (1) the employer has a written policy or procedure that violates a safety or health standard; or (2) Cal/OSHA has evidence of a pattern or practice of the same violation or violations committed by that employer involving more than one of the employer’s worksites.

If the employer fails to rebut this presumption, Cal/OSHA is authorized to issue an enterprise-wide citation requiring enterprise-wide abatement. Enterprise-wide violations are subject to the same penalty provisions as “willful” or “repeat” violations. This means that such a violation puts the employer at risk of receiving a civil penalty of up to US$124,709.

Egregious violations and the risk of incurring multiple penalties

If an inspection or investigation leads Cal/OSHA to conclude that an employer has “willfully and egregiously violated” a safety or health standard, then Cal/OSHA “shall issue a citation to that employer for each egregious violation.” Moreover, “each instance of an employee exposed to that violation shall be considered a separate violation for purposes of issuance of fines and penalties.”

Because SB 606 obligates Cal/OSHA to issue citations for each “egregious” violation, employers are at risk of incurring multiple penalties arising from the same violation. If, for example, a worksite safety hazard constitutes an “egregious violation,” and the condition persists for two weeks, an employee on that worksite may be deemed to have been exposed to that hazard more than once. Thus, under SB 606, each time the employee was exposed to the hazard during the two-week period will result in a separate monetary penalty for the employer.

The scope of what constitutes an “egregious violation” is broad. A violation is “egregious” if one or more of the following is true about the employer or a willful violation committed by the employer:

1. the employer intentionally—through conscious, voluntary action or inaction—made no reasonable effort to eliminate the known violation;

2. the violation resulted in worker fatalities, a worksite catastrophe, or a large number of injuries or illnesses. Here, “catastrophe” means the inpatient hospitalization, regardless of duration, of three or more employees resulting from an injury, illness, or exposure caused by the workplace hazard;

3. the violation resulted in persistently high rates of worker injuries or illnesses;

4. the employer has an extensive history of prior similar violations;

5. the employer has intentionally disregarded its health and safety responsibilities;

6. the employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of its duties;

and/or

7. the employer has committed a large number of violations as to undermine significantly the effectiveness of any safety and health program that may be in place;

Once a violation is determined to be egregious, that determination shall remain in effect for five years. After that five-year period has elapsed, additional evidence is required to support any subsequent citation for an egregious violation.

SB 606 does not provide guidance on what constitutes “persistently high rates” of injuries or illnesses, “an extensive history” of prior violations, or “a large number of violations” that “significantly undermine the effectiveness” of safety and health programs. Accordingly, employers should err on the side of caution when reviewing their policies and procedures for compliance with relevant safety and health standards. This may include offering additional health and safety training to personnel.

Cal/OSHA’s expanded power to subpoena and seek injunctions and restraining orders

SB 606 gives Cal/OSHA the power to issue and enforce subpoenas. If Cal/OSHA requests information from an employer during its investigation of the employer’s policies or practices and the employer fails to promptly respond, Cal/OSHA may issue a subpoena. If the employer subsequently fails to provide the requested information within a reasonable period, Cal/OSHA may enforce the subpoena to obtain the information. Although it is unclear what constitutes “a reasonable period of time,” employers should respond expeditiously to Cal/OSHA investigatory requests, whether substantively or by objection and negotiation, to avoid receiving a subpoena.

Furthermore, once Cal/OSHA has grounds to issue a citation against an employer, SB 606 allows it to seek an injunction or restraining order from a superior court. This could occur before the employer has the opportunity to contest the alleged grounds for the citation through the administrative appeal process.

 

Special thanks to law clerk Michelle Avidisyans (Los Angeles) for her assistance in the preparation of this content.



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