In our annual California Legislative Update, we briefly explained that SB 606 expanded the enforcement authority of the California Division of Occupational Safety and Health (“Cal/OSHA”) in various ways. With the new law’s effective date (January 1, 2022) right around the corner, we are providing a more detailed breakdown on the two new categories of Cal/OSHA violations created by SB 606 and its potential impact on California employers.
SB 606 creates a rebuttable presumption that an employer’s health and safety violation is “enterprise-wide” and has occurred at multiple worksites under the following circumstances:
- The employer has a written policy or procedure that violates Cal/OSHA regulations; or
- Cal/OSHA has evidence of a pattern or practice of the same violation committed at more than one of the employer’s worksites.
In other words, an employer with multiple worksites will have the burden of proving to a Cal/OSHA investigator that its other worksites have different, compliant written policies and procedures when a violation on a worksite is found to have occurred. If the employer is unable to rebut the presumption by proving that its other worksites have a different, compliant written policy or procedure (or different, compliant practice—depending on the alleged violation), Cal/OSHA may issue an enterprise-wide citation requiring enterprise-wide abatement. Citations for enterprise-wide violations have the same penalties as willful or repeated violations, with a maximum penalty of up to $134,334 per violation. Thus, a deficient policy or procedure in an employer’s Injury and Illness Prevention Program or COVID-19 Prevention Program could subject an employer to significantly increased fines if the employer uses a virtually identical program or policy throughout its California locations.
The second violation category established by SB 606 is an “egregious violation.” Cal/OSHA can issue a citation for an egregious violation if it determines that one or more of the following is true:
- The employer, intentionally, through conscious, 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. A “catastrophe” means the inpatient hospitalization, regardless of duration, of three or more employees resulting from an injury, illness, or exposure caused by a workplace hazard or condition.
- The violations resulted in persistently high rates of worker injuries or illnesses.
- The employer has an extensive history of prior violations of this part.
- 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 under this part.
- The employer has committed a large number of violations so as to undermine significantly the effectiveness of any safety and health program that may be in place.
Under SB 606, Cal/OSHA must treat each instance of an employee exposed to an egregious violation as a separate violation for the purpose of issuing fines and penalties. As a result, an employer could be subject to substantial cumulative penalties for widespread violations affecting multiple employees. This new violation could be particularly problematic for employers who fail to implement all policies in accordance with Cal/OSHA’s COVID-19 Emergency Temporary Standards and experience multiple COVID-19 outbreaks or hospitalizations.
Additional Enforcement Changes Under SB 606
SB 606 authorizes Cal/OSHA to issue a subpoena during inspections and investigations if the employer (or related employer entity) fails to promptly provide the requested information. Moreover, Cal/OSHA “may enforce the subpoena if the employer or the related employer entity fails to provide the requested information within a reasonable period of time.” The text of SB 606 fails to define what is considered a “reasonable period of time,” meaning it is apparently up to the discretion of Cal/OSHA.
The new law also authorizes Cal/OSHA to seek an injunction restraining certain uses or operations of employment if the Division has grounds to issue a citation. Currently, Cal/OSHA may only seek an injunction if “the condition of any employment or place of employment or the operation of any machine, device, apparatus, or equipment constitutes a serious menace to the lives or safety of persons about it.” Thus, this change represents another significant expansion of Cal/OSHA’s enforcement power.
Employers with multiple worksites in California, such as those in the retail, restaurant, manufacturing, or construction industries, should carefully review their written safety policies and procedures to ensure they are compliant with current Cal/OSHA rules and regulations and followed in practice. Employers should pay extra attention to any safety programs that may be identical across worksites, such as an Injury and Illness Prevention Program, COVID-19 Prevention Program, Respiratory Protection Plan, Hazard Communications Program, Heat Illness Prevention Program, etc., and consider making programs location-specific where feasible. Furthermore, employers should exercise extra caution and expediency when responding to Cal/OSHA complaints and document requests. Employers with any questions or concerns should consult with experienced employment counsel to ensure they are compliant.
This article is not an unequivocal statement of the law, but instead offers some potential issues to consider with counsel. This is provided for informational purposes only and does not constitute legal advice and is not intended to form an attorney-client relationship. Please contact your Sheppard Mullin attorney contact for additional information.