Keenan Briefings

Briefing

SB 606 Expands Cal-Osha’s Enforcement Authority

• SB 606 will go into effect on January 1, 2022
• The new law could expose certain employers to much higher penalties for workplace safety violations
• SB 606 creates a rebuttable presumption that an employer with multiple worksites has committed an enterprise-wide violation under certain circumstances

On September 27, 2021, Governor Gavin Newsom signed into law SB 606 (Chapter 336, Statutes of 2021), which authorizes the Division of Occupational Safety and Health (Cal-OSHA) to issue a citation for an egregious violation of an occupational safety or health standard, order, special order, or regulation, for each willful violation determined by Cal-OSHA, and count each employee affected by the violation as a separate violation for the purposes of the issuance of fines and penalties. This law could expose certain employers to much higher penalties for workplace safety violations.

Specifically, SB 606 establishes a rebuttable presumption that an employer with multiple worksites has committed an enterprise-wide violation if either of the following are true:

• The employer has a written policy or procedure that violates any of the following:
  • Section 25910 of the Health and Safety Code (which governs the use of asbestos),
  • Any standard, rule, order, or regulation established by the Occupational Safety and Health Standards Board, or
  • Any standard, rule, order, or regulation established pursuant to the California Occupational Safety and Health Act of 1973.
• Cal-OSHA has evidence of a pattern or practice of the same violation or violations involving more than one of the employer’s worksites.

The new law prohibits Cal-OSHA from issuing a notice instead of a citation if either:

• The employer’s violations are serious, willful, or arise from a failure to abate, or
• The number of first instance violations found in the inspection, other than serious, willful or repeated violations, is 10 or more violations.

The law sets the maximum penalty for an enterprise-wide violation at $123,709.00.

The new law also provides that if Cal-OSHA believes that an employer has “willfully and egregiously” violated an occupational safety or health standard, order, special order or regulation, it must issue a citation to that employer for each violation and each instance of an employee exposed to that violation will be considered a separate violation for purposes of the issuance of fines and penalties. (This will not, however be considered a separate violation for purposes of a prequalification questionnaire for contractors under Section 20101 of the Public Contract Code.) A violation is an “egregious violation” if one or more of the following is true of the employer or the violations committed by it:

1. The employer intentionally 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. (A “catastrophe” is defined as the inpatient hospitalization 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.
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.
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.

Under the new law, Cal-OSHA has five years in which to bring a citation for an egregious violation.

It provides that an application to the superior court accompanied by affidavit showing that Cal-OSHA has grounds to issue an egregious violation citation is enough to warrant the immediate granting of a temporary restraining order, in the court’s discretion.

The law also gives Cal-OSHA the power to issue and enforce a subpoena if an employer or related entity fails to promptly provide the requested information.

Notably, SB 606 did not amend or impact Labor Code sections 6434 and 6434.5 which provide a mechanism for certain public agencies to apply for a refund of their civil penalty if all conditions previously cited have been abated. Still, while SB 606 was prompted by workplace exposures to COVID-19, it is likely to have a much wider and more lasting reach. The law goes into effect as of January 1, 2022.

AP Keenan is not a law firm and no opinion, suggestion, or recommendation of the firm or its employees shall constitute legal advice. Clients are advised to consult with their own attorney for a determination of their legal rights, responsibilities, and liabilities, including the interpretation of any statute or regulation, or its application to the clients’ business activities.