10 San Diego Dealer Senate Bill 606 makes amendments to California Labor Code that became effective Jan. 1, 2022, giving Cal/OSHA expanded powers and increased penalties. The bill creates two new categories of violations; “enterprise-wide” and “egregious.” The bill also authorizes Cal/OSHA to issue a subpoena should an employer fail to provide Cal/OSHA with information related to an investigation. Citations for enterprise-wide violations have the same penalties as willful or repeat violations, with a maximum penalty of up to $136,532 per violation. Below, we discuss these categories and subpoena powers with their potential impact on California employers. ENTERPRISE-WIDE VIOLATIONS (SECTION 6317 of California Labor Code) The bill creates a rebuttable presumption of an enterprise-wide violation when Cal/OSHA finds either of the two conditions below: • The employer has a written policy or procedure that violates any Cal/OSHA rule, order, or regulation as stated in the California Labor Code. • Cal/OSHA has evidence of a pattern or practice of the same violation or violations committed by the employer at multiple worksites. When Cal/OSHA enforcement recognizes that an employer has multiple worksites that may have common policies and procedures, an enterprise-wide citation and abatement orders can be issued. The employer will then have to prove that the other worksites have different policies, procedures, and written programs and hence the violation cannot be enterprise-wide. The penalties for enterprise-wide violations are the same as the current penalties for repeat violations with a maximum of $136,532 per violation. This can be problematic for employers with multiple worksites in California that share a common safety program such as Illness & Injury Prevention Plan (IIPP) or COVID-19 Prevention Plan (CPP). EGREGIOUS VIOLATION (SECTION 6317.8 of California Labor Code) Cal/OSHA finds an employer has committed an “egregious violation” if one or more of the following are 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. For purposes of this paragraph, “catastrophe” means 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. • 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. • 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. SB 606 requires Cal/OSHA to treat each employee exposed to an egregious violation as a separate violation and issue fines and penalties commensurate with such violations. The employer can be subject to a significant multiplier in penalties when many violations are found to have impacted multiple employees. Cal/OSHA has issued multiple penalties under COVID-19 Emergency Temporary Standards when the employer failed to implement policies such as separation, sanitizing or face mask protocols. Expanded Enforcement Authority & Subpoena Powers for Cal/OSHA By Sam Celly, BChE MChE JD CSP
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