Legislative Update: Cal/OSHA’s Citation Authority Expanded
October 7 2021
On September 27, 2021, Governor Newsom signed SB 606, which creates two new categories of Cal/OSHA violations: “enterprise-wide” violations and “egregious” violations. The new law expands Cal/OSHA’s citation authority and could have the effect of greatly increasing the fines employers (especially those large employers with multiple worksites) might be subject to. The new law will go into effect on January 1, 2022.
SB 606 creates a rebuttable presumption that an employer with multiple worksites has committed an “enterprise-wide” violation upon Cal/OSHA’s finding that either of the following factors “is true”:
- “The employer has a written policy or procedure that violates Section 25910 of the Health and Safety Code, any standard, rule, order, or regulation,” as specified in the California Labor Code.
- There is “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.”
In other words, employers with multiple worksites will have the burden of proving its other worksites have different, compliant written policies and procedures when a violation on a worksite is found to have occurred.
SB 606 also creates a new category for “egregious violations,” in which each employee exposed to an “egregious violation” would be considered a separate violation for fines and penalties. A violation is deemed egregious under the bill if one or more of the following is true:
- The employer, intentionally through voluntary action or inaction, made no reasonable effort to eliminate the known violation.
- The violations resulted in worker fatalities, a worksite catastrophe, or a large number of injuries or illnesses.
- The violations resulted in persistently high rates of worker injuries or illnesses.
- The employer has an extensive history of similar prior violations.
- The employer has intentionally disregarded their health and safety responsibilities.
- The employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of their duties to provide occupational safety to their employees.
- The employer has committed a large number of violations to undermine the effectiveness of any safety and health program that might be in place.
Additionally, SB 606 authorizes Cal/OSHA to issue a subpoena during an inspection “if the employer or the related employer entity fails to promptly provide the requested information, and may enforce the subpoena if the employer or the related employer entity fails to provide the requested information within a reasonable period of time.” There is no definition of what is considered a “reasonable period of time.”
Employers (especially those employers with multiple worksites) should review their policies and practices to ensure compliance with all Cal/OSHA standards. If you have questions regarding whether your employment policies and practices comply with Cal/OSHA standards, contact an employment attorney at Weintraub Tobin for guidance.