On September 27, 2021, Governor Newsom signed Senate Bill 606 (“SB 606”) into law. SB 606, which will go into effect on January 1, 2022, significantly expands the enforcement authority of the California Division of Occupational Safety and Health (“Cal/OSHA”).
SB 606 Creates New Categories of Cal/OSHA Violations
SB 606 creates two new categories of violations of applicable employee health and safety standards:
1. “Enterprise-Wide” Violations
SB 606 allows Cal/OSHA to presume that an employer with multiple worksites in California is committing an “enterprise-wide” violation at all of the employer’s locations if either of the following is true: (1) the employer has a non-compliant written health and safety policy or procedure; or (2) 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.”
Employers can rebut the presumption of an enterprise-wide violation by, for instance, demonstrating that the violation identified by Cal/OSHA was isolated to a particular worksite and that the employer’s other worksites have compliant written policies and procedures.
If Cal/OSHA ultimately issues an enterprise-wide citation, the employer will be required to abate the violation at all of its California worksites. SB 606 also establishes that employers who receive an enterprise-wide citation may be assessed a civil penalty of up to $124,709 for each violation.
2. “Egregious” Violations
SB 606 also establishes that Cal/OSHA may issue a citation for an “egregious violation,” where Cal/OSHA determines that an employer has willfully and egregiously violated an occupational safety or health standard, order, special order, or regulation.
A violation is “egregious” where one or more of the following is 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 large number of injuries or illnesses, or a worksite catastrophe (meaning the 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; and/or
- 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.
In order for an employer to receive a citation for an egregious violation, the conduct underlying the violation must have occurred within the five years preceding the citation. In addition, each employee exposure to an egregious violation will be considered a separate violation, meaning employers could face enormous fines and penalties.
SB 606 Expands Cal/OSHA’s Subpoena Power
SB 606 also authorizes Cal/OSHA to subpoena employers who fail to promptly provide requested information during an investigation. Cal/OSHA may then enforce the subpoena if the employer fails to provide the requested information within a reasonable period of time. However, SB 606 does not define what constitutes a “reasonable” period of time. Unless Cal/OSHA issues further guidance on this issue, employers should assume that Cal/OSHA has the discretion to determine what constitutes a “reasonable” amount of time for subpoena compliance based on individual circumstances.
SB 606 Significantly Expands Cal/OSHA’s Ability to Seek Injunctions
Under SB 606, if Cal/OSHA has grounds to issue a citation, it also has the power to seek an injunction to stop the conduct underlying the citation. This is a very significant expansion of Cal/OSHA’s enforcement power. Currently, and until SB 606 takes effect on January 1, 2022, Cal/OSHA can only seek an injunction where “the condition of any employment or place of employment or the operation of any machine, device, apparatus, or equipment constitutes a serious menace to the lives or safety of persons about it.”
The Bottom Line
SB 606 significantly increases Cal/OSHA’s enforcement powers. Employers with multiple California locations are the most likely to be impacted by SB 606, but this new law should serve as a reminder to all employers to add a review of their workplace safety policies and procedures to their year-end to-do lists. Between now and the end of 2021, all employers should work with employment counsel to ensure that their policies and procedures – especially any written policies or procedures – are legally compliant. This is a best practice at the end of every calendar year, but it could be especially critical this year in light of SB 606.