Cal/OSHA’s Toolbox Has Significantly Expanded: A Look At Senate Bill 606Dec 02, 2021 Published Article
Governor Gavin Newsom recently signed into law Senate Bill 606, set to take effect on January 1, 2022. With proponents of the bill citing the need to hold large employers accountable for COVID-related workplace hazards, SB 606 creates two new categories of employer violations. First, SB 606 creates a rebuttable presumption that if a type of violation is discovered at one particular worksite, Cal/OSHA can extrapolate that the violation is an “enterprise-wide” violation at all of the other company worksites. Additionally, SB 606 adds a new category of “egregious violations” to Cal/OSHA’s arsenal, adding a penalty multiplier for such violations. Finally, SB 606 increases Cal/OSHA’s investigative capabilities by authorizing Cal/OSHA to issue a subpoena to employers should they fail to “promptly provide” information requested during an investigation. As further explained below, the consequences of violating Cal/OSHA regulations has become significantly greater and more expensive, particularly for larger employers with multiple worksites.
ENTERPRISE-WIDE VIOLATIONS AND THE SEVERE REMEDIES THAT FOLLOW
Under SB 606, employers with more than one worksite will now face a rebuttable presumption that a violation at one location is actually “enterprise-wide” if either of the following are true:
- A written policy or procedure violates any Cal/OSHA standard, rule, order or regulation; OR
- Cal/OSHA finds evidence of a “pattern or practice” of the same violation being committed by the employer at one or more of its worksites.
Under the first triggering event, an employer with merely a technical deficiency within its Injury and Illness Prevention Program (IIPP) discovered during an inspection at one worksite can face an “enterprise-wide” citation applicable to all of the employer’s other locations. Additionally, if an employer has previously received a citation at any of its other locations, it will be extremely vulnerable to an “enterprise-wide” citation should the same violation occur anywhere again. Either way, if the employer cannot rebut the presumption that the violation is “enterprise-wide,” Cal/OSHA can issue an enterprise-wide abatement order and assess a civil penalty of up to $124,709 for each violation. Furthermore, SB 606 authorizes Cal/OSHA to seek a temporary restraining order and/or an injunction against an employer cited for an “enterprise-wide” violation, essentially shutting down statewide operations until the violation is corrected.
Employers with multiple sites must review their written programs to ensure that they are in compliance with Cal/OSHA regulations. Policies requiring review include, at a minimum: (a) Injury and Illness Prevention Program (IIPP); (b) Heat Illness Prevention Plans (HIPP); (c) Code of Safe Practices; (d) Workplace Violence Prevention Plan; and (e) COVID-19 Prevention Plan. To avoid the presumption that a violation at one location is shared at all others, these written programs should be as narrowly tailored and location-specific as possible. Employers should also ensure that adequate training occurs at each site to make certain that its policies are being properly implemented.
Should an employer with multiple worksites find itself being investigated by Cal/OSHA, employees responding to the investigator’s inquiries should be trained to give site-specific and site-distinguishing responses when possible, all to help avoid an “enterprise-wide” citation.
THE “EGREGIOUS VIOLATION” AND THE PENALTY MULTIPLIER THAT IT BRINGS
SB 606 also equips Cal/OSHA with a new category of citation for “egregious violations” when it finds that an employer has willfully and egregiously violated any OSHA standard, rule, order, or regulation. Specifically, a violation is “egregious” if one or more of the following is true:
(1) The employer, intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the known violation.
(2) The violations resulted in worker fatalities, a worksite catastrophe, or a large number of injuries or illnesses. For purposes of this paragraph, “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.
(3) The violations resulted in persistently high rates of worker injuries or illnesses.
(4) The employer has an extensive history of prior violations of this part.
(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 under this part.
(7) 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.
Although the above list is full of vague and ambiguous criteria that will likely require litigation to greater clarification, only one of the above is required to show an “egregious” violation.
The new law requires that when the Division believes that an employer has “willfully and egregiously” violated an OSHA standard, order, special order, or regulation, the Division “shall” issue a citation to the employer for “each egregious violation.” Further, SB 606 states that each instance that an employee is exposed to the violation shall be considered a separate violation for the purposes of fines and penalties. Thus, a single violation can result in multiple penalties for each affected employee. Also, once an “egregious violation” is found by the Division, that determination remains in effect up to five years under the new law. Employers must understand that that a strong safety culture is paramount.
THE POWER TO SUBPOENA: EMPLOYERS MUST ACT REASONABLY
SB 606 also significantly expands Cal/OSHA’s investigative power by authorizing the division 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.” The new law does not define what constitutes a “reasonable period of time,” leaving that determination merely to the discretion of the Division. Therefore, employers must ensure that all document and information requests from Cal/OSHA receive prompt responses. To the extent that delays are foreseeable, employers must communicate these realities to the investigator to establish realistic deadlines.
It is clear that employers, particularly those with multiple worksite locations, face significant exposure for failing to comply with any OSHA standard, rule, order, or regulation. It is critical that employers spend the time now to review all safety-related policies and procedures, and effectively train personnel as to the same.