New Law Expands Cal/OSHA’s Enforcement Authority
New Law Expands Cal/OSHA’s Enforcement Authority

Senate Bill 606, which becomes effective on January 1, 2022, strengthens Cal/OSHA’s enforcement powers by creating two new categories of Cal/OSHA violations: “enterprise-wide” and “egregious”. A finding of an enterprise-wide violation may result in increased fines and penalties and requirements for abatement across multiple employer worksites, while an egregious violation permits increased fines and penalties per employee, per violation in certain circumstances. The new law also highlights the importance of compliant written health and safety policies.

Enterprise-Wide Violation

SB 606 law creates a rebuttable presumption that an employer with multiple worksites has committed an “enterprise-wide” violation if Cal/OSHA determines that either of the following “is true”:

  • The employer has a non-compliant written policy or procedure; or
  • Cal/OSHA “has evidence of a pattern or practice of the same violation or violations committed by that employer involving more than one of the employer’s worksites.”

An employer with multiple locations which fails to rebut the rebuttable presumption that it has committed an “enterprise-wide” violation, may be assessed a civil penalty of up to $124,709 for each violation, but in no case less than $8,908 for each willful violation.

However, an enterprise-wide violation cannot be based on an emergency regulation adopted or amended within the last 30 days, commencing from the date the standards board votes to adopt or amend the emergency regulation.

Egregious Violation:

SB 606 also authorizes Cal/OSHA to issue a citation for an egregious violation of an occupational safety or health standard, order, special order, or regulation, and permits Cal/OSHA to consider each instance of an employee exposed to that violation as a separate violation for purposes of the issuance of fines and penalties.

 A violation is an “egregious violation” if one or more of the following is true:

  • The employer, intentionally through 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;
  • The violations resulted in persistently high rates of worker injuries or illnesses;
  • The employer has an extensive history of prior Cal/OSHA 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 duty to provide occupational safety to their employees; or
  • The employer has committed a large number of violations to undermine the effectiveness of any safety and health program that might be in place.

SB 606 also provides Cal/OSHA with increased subpoena power during investigations.

The author would like to gratefully acknowledge the assistance of Joanne Warriner.

This blog is presented under protest by the law firm of Ervin Cohen & Jessup LLP. It is essentially the random thoughts and opinions of someone who lives in the trenches of the war that often is employment law–he/she may well be a little shell-shocked. So if you are thinking “woohoo, I just landed some free legal advice that will fix all my problems!”, think again. This is commentary, people, a sketchy overview of some current legal issue with a dose of humor, but commentary nonetheless; as if Dennis Miller were a lawyer…and still mildly amusing. No legal advice here; you would have to pay real US currency for that (unless you are my mom, and even then there are limits). But feel free to contact us with your questions and comments—who knows, we might even answer you. And if you want to spread this stuff around, feel free to do so, but please keep it in its present form (‘cause you can’t mess with this kind of poetry). Big news: Copyright 2021. All rights reserved; yep, all of them.

If you have any questions about this article, contact the writer directly, assuming he or she was brave enough to attach their name to it. If you have any questions regarding this blog or your life in general, contact Kelly O. Scott, Esq., commander in chief of this blog and Head Honcho (official legal title) of ECJ’s Employment Law Department.


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