Cal/OSHA’s Enforcement Authority Expanded

On September 27, Governor Newsom signed Senate Bill 606, significantly expanding the California Division of Occupational Safety and Health’s (Cal/OSHA) enforcement authority. SB 606 increases potential exposure for employers with multiple worksites in the state, requires Cal/OSHA to issue “egregious violations” in certain circumstances, increases the potential monetary fines associated with citations, and expands Cal/OSHA’s authority to issue subpoenas and seek injunctions and temporary restraining orders. The law becomes effective January 1, 2022, so employers should use the remaining months of 2021 to identify and close any compliance gaps to reduce the risk of receiving an enterprise-wide violation or an egregious violation.

Enterprise-Wide Violations

For employers with multiple worksites, SB 606 creates a rebuttable presumption that a violation is “enterprise-wide” when either of the following factors is met:

1. A written policy or procedure violates a Cal/OSHA safety standard, rule, order, or regulation; or
2. Evidence of a “pattern or practice” of the same violation committed by that employer at more than one of the employer’s worksites.[1]

If the employer fails to rebut the presumption that a violation is “enterprise-wide,” then the division may issue an enterprise-wide citation requiring enterprise-wide abatement.[2]

“Egregious” Violations

SB 606 also directs Cal/OSHA to issue an “egregious violation” 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 their health and safety responsibilities.
6. The employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of their 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.[3]

The conduct underlying a violation determined to be egregious must have occurred within the five years preceding an egregious violation citation.[4] Once a violation is determined to be egregious, that determination remains in effect for five years. After that five-year period has elapsed, additional evidence is required to support any subsequent egregious violation.[5]

If Cal/OSHA “believes that an employer has willfully and egregiously violated” a safety standard, then Cal/OSHA “shall issue a citation to that employer for each egregious violation[.]”[6] Critically, “each instance” that an employee is exposed to the violation alleged to be an egregious violation “shall be considered a separate violation for purposes of the issuance of fines and penalties.”[7] This means that if an employee is exposed to the same cited hazard each day at work, the employer could be cited with multiple violations, which could significantly increase the associated fines.

Subpoenas, Injunctions, and Temporary Restraining Orders

SB 606 authorizes Cal/OSHA to issue a subpoena if the employer fails to “promptly provide” requested information during an inspection, and may enforce the subpoena if the employer “fails to provide the requested information within a reasonable time.”[8] These time limits are not defined.

The bill also expands Cal/OSHA’s authority to seek injunctions and temporary restraining orders. Specifically, if Cal/OSHA has “grounds to issue a citation” under section 6317, then Cal/OSHA may seek an injunction in superior court restraining the use or operation of equipment until the cited condition is corrected.[9] Upon filing an affidavit showing that Cal/OSHA has grounds to issue a citation under section 6317, the court may issue a temporary restraining order.[10]

Impact on Employers

These substantive amendments greatly increase the enforcement authority of Cal/OSHA. Employers with multiple worksites in the state will typically have one set of written procedures that are used at all worksites, such as written Injury Illness and Prevention Programs, Hazard Communication Programs, and Heat Illness Prevention Programs. A deficiency in these written programs now provides a basis for issuing an “enterprise-wide” citation and potentially requiring “enterprise-wide” abatement.

In addition, Cal/OSHA’s new authority to issue egregious violations is broad and not clearly defined. Cal/OSHA need only establish one of the seven bases for finding an employer’s conduct “egregious.” Many of the bases contain undefined terms, such as “large number” of injuries or illness, “large number” of violations “that undermine significantly the effectiveness of any safety and health program,” “extensive history” of prior violations, or “persistently high” injury rates. Furthermore, the bill states that Cal/OSHA “shall” issue an egregious violation if the criteria are established, meaning that Cal/OSHA is required to issue that citation. The use of the word “shall” in the bill could limit the ability of an employer to pursue a reclassification of these violations through settlement.

Employers should carefully review written programs to ensure compliance with all applicable requirements, including ensuring that required trainings are scheduled and a system is in place to document that those trainings occur. Reviewing these policies and procedures could reduce the likelihood of receiving an enterprise-wide violation or an egregious violation.

Should an employer receive a citation, the employer should promptly respond to information requests and communicate when documents will be produced to minimize the likelihood of receiving a subpoena.

Beveridge & Diamond’s Occupational Health & Safety practice assists clients with federal and state OSHA standards and regulations that govern worker health and safety. Our work includes overseeing compliance audits and risk assessments, reviewing company policies and procedures, conducting internal trainings, responding to information requests, and representing companies during workplace incidents, federal and state OSHA inspections, and related enforcement. With an office in California, our team includes lawyers with experience with Cal/OSHA regulations specifically. For more information, please contact the authors.