Cal / OSHA Enforcement Authority Expanded | Beveridge & Diamond PC


On September 27, Governor Newsom signed Senate Bill 606, significantly expanding the enforcement authority of the California Division of Occupational Safety and Health (Cal / OSHA). SB 606 increases the potential exposure of employers with multiple job sites in the state, forces Cal / OSHA to issue “flagrant violations” in certain circumstances, increases potential fines associated with citations, and expands Cal / OSHA’s authority issue subpoenas and request temporary restraining injunctions and orders. The law will come into effect on January 1, 2022, so employers should use the remaining months of 2021 to identify and address any compliance gaps to reduce the risk of receiving a company-wide breach or breach. blatant.

Company-wide violations

For employers with multiple work sites, SB 606 creates a rebuttable presumption that a violation is “company-wide” when one of the following factors is met:

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

If the employer does not rebut the presumption that a violation is “company-wide”, then the division may issue a company-wide citation demanding a company-wide reduction. business.[2]

“Blatant” violations

SB 606 also directs Cal / OSHA to issue a “flagrant violation” if one or more of the following conditions are true:

  1. The employer, intentionally, by conscious and willful action or inaction, has made no reasonable effort to eliminate the known violation.
  2. The violations resulted in the death of workers, a disaster on the construction site, or a large number of injuries or illnesses. For the purposes of this paragraph, “disaster” means the hospitalization, regardless of duration, of three or more employees resulting from injury, illness or exposure caused by a hazard or condition in the workplace. work place.
  3. The violations have resulted in consistently high rates of worker injury or illness.
  4. The employer has a long history of previous violations of this part.
  5. The employer intentionally ignored his health and safety responsibilities.
  6. The employer’s conduct, taken as a whole, amounts to manifest bad faith in the performance of its duties under this Part.
  7. The employer has committed a large number of violations in a way that significantly undermines the effectiveness of any safety and health program that may be in place.[3]

The conduct underlying a flagrant violation must have occurred within the five years preceding a flagrant violation citation.[4] Once a violation is found to be flagrant, this determination remains in effect for five years. After this five-year period has elapsed, further evidence is needed to support any subsequent blatant violations.[5]

If Cal / OSHA “believes an employer has willfully and seriously violated” a safety standard, then Cal / OSHA “will issue a citation to that employer for each flagrant violation[.]”[6] Importantly, “every instance” where an employee is exposed to the alleged violation to be a flagrant violation “shall be treated as a separate violation for the purposes of imposing fines and penalties.”[7] This means that if an employee is exposed to the same cited hazard every day on the job, the employer could be cited for multiple infractions, which could significantly increase the associated fines.

Temporary subpoenas, injunctions and restraining orders

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

The bill also expands Cal / OSHA’s power to seek injunctions and temporary restraining orders. Specifically, if Cal / OSHA has “grounds for issuing a citation” under Section 6317, then Cal / OSHA may seek an injunction in a superior court restricting the use or operation of the equipment until that the condition cited is corrected.[9] When 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 substantial changes greatly increase Cal / OSHA’s enforcement authority. Employers with multiple work sites in the state will generally have a set of written procedures that are used at all work sites, such as written injury prevention and prevention programs, hazard communication programs, and programs. prevention of heat-related illnesses. A deficiency in these written programs now provides a basis for issuing a “company-wide” citation and potentially demanding a “company-wide” reduction.

Additionally, Cal / OSHA’s new authority to issue flagrant violations is broad and not clearly defined. Cal / OSHA need only establish one of seven bases to conclude that an employer’s conduct is “egregious”. Many databases contain undefined terms, such as “large number” of injuries or illnesses, “large number” of offenses “which significantly undermine the effectiveness of any safety and health program”, “a long history “of previous offenses or” persistently high injury rates. Additionally, the bill states that Cal / OSHA “shall” post a flagrant violation if the criteria are established, which means Cal / OSHA is required to post that citation. The use of the word “shall” in the bill could limit an employer’s ability to seek reclassification of these offenses by regulation.

Employers should carefully review written programs to ensure compliance with all applicable requirements, including ensuring that required training is scheduled and that a system is in place to document that such training takes place. Reviewing these policies and procedures could reduce the likelihood of receiving a company-wide violation or a flagrant violation.

If an employer receives a citation, the employer should respond promptly to requests for information and indicate when documents will be produced in order to minimize the likelihood of receiving a subpoena.

[1] Cal. Labor Code § 6317 (b) (1).

[2] Cal. Labor Code § 6317 (b) (2).

[3] Cal. Labor Code § 6317.8 (b).

[4] Cal. Labor Code § 6317.8 (c).

[6] Cal. Labor Code § 6317.8 (a) (emphasis added).

[7] Cal. Labor Code § 6317.8 (a).

[8] Cal. Labor Code § 6317.9.

[9] Cal. Labor Code § 6323.

[10] Cal. Labor Code § 6324.

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