May 26, 2022

Volume XII, Number 146

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Cal/OSHA Enters the New Year With Expanded Enforcement Authority

SB 606, which took effect January 1, 2022, greatly increases the California Division of Occupational Safety and Health’s (“Cal/OSHA’s”) enforcement powers by creating two new violation categories – “enterprise wide” and “egregious” violations.

Enterprise Wide Violations

The new law creates a rebuttable presumption that an employer with multiple worksites commits an “enterprise wide” violation if (i) it has a written policy or procedure which violates Cal/OSHA’s rules and regulations, or (ii) there is evidence of a pattern or practice of the same violation(s) committed by the employer and which involve more than one of the employer’s worksites.

Due to the rebuttable presumption, an employer with multiple worksites will have the burden of demonstrating to Cal/OSHA that its other worksites have distinct, compliant written policies and/or practices when Cal/OSHA determines a violation has occurred.  If the employer is unable to rebut the presumption, Cal/OSHA may issue an enterprise-wide citation requiring enterprise-wide abatement.  For example, a flawed policy or procedure in an employer’s COVID-19 prevention program could result in significantly increased fines if the employer uses an equivalent program or policy throughout its California worksites.

Additionally, whereas Cal/OSHA could previously only seek an injunction if the at-issue condition of any employment constituted a “serious menace” to the lives or safety of persons about it, the new law authorizes Cal/OSHA to seek an injunction restraining certain uses or operations of employment if it has grounds to issue a citation based on enterprise wide violations.

Egregious Violation

The second category set forth by the new law is “egregious violations.” 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 a known violation;

  • Violations resulted in worker fatalities, three or more hospitalizations, or a large number of injuries or illnesses;

  • Violations resulted in persistently high rates of worker injuries or illnesses;

  • An employer has an extensive history of prior violations;

  • An employer has intentionally disregarded its health and safety responsibilities;

  • An employer’s conduct amounts to clear bad faith in the performance of its duties; or

  • An 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.

Each employee exposed to an egregious violation will be considered a separate violation for purposes of the issuance of fines and penalties. This provision could result in substantial penalties for employers who are found to have engaged in egregious violations.

Actions for Employers

Employers should carefully review their safety policies, procedures, and practices to confirm compliance with Cal/OSHA rules and regulations, especially if employers have multiple worksites in California.  Employers should also carefully scrutinize any safety policies that apply across worksites, and consider differentiating particular policies based upon location if appropriate.

Copyright © 2022, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XII, Number 27
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About this Author

Roland M. Juarez Employment & Labor Attorney Hunton Andrews Kurth Los Angeles, CA
Partner

Roland’s practice focuses exclusively on employment and labor law.

Roland has exclusively handled employment cases since 1992. He was named a 2020 Top Minority Attorney in Los Angeles and a 2019 Top Litigator & Trial Lawyer, both by the Los Angeles Business Journal; a California Labor and Employment Star and was nominated as California's top Labor & Employment Litigation Attorney in 2019, both by Benchmark Litigation. Hunton’s California Employment Group was also nominated as the California Employment Group of the Year in 2019 by Benchmark. Roland’s experience includes class...

213-532-2145
Susan WIltsie Employment Lawyer Hunton Andrews Kurth
Partner

Susan’s practice focuses on labor, employment and OSHA compliance, litigation and defense.

Susan’s practice includes comprehensive OSHA/MSHA representation of employers across all industry sectors. Her OSHA/MSHA practice includes compliance assistance, training, citation defense, participation in rulemaking, appellate administrative litigation, whistleblower cases, creation/oversight of PSM/RMP and general OSHA audit programs, and fatality/serious injury accident investigation.

Susan has 30 years of experience...

202 955 1546 direct
Michael A. Pearlson Labor and Employment Attorney Hunton Andrews Kurth Los Angeles
Associate

Michael is an associate in the Labor and Employment group, focusing his practice on complex discrimination, harassment, and wage and hour disputes, including class actions and PAGA matters.

Michael’s experience includes wage and hour class actions; California Private Attorneys General Act (PAGA) suits; and workplace discrimination, harassment, and retaliation matters.

213-532-2012
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