California Enacts New Law Increasing CalOSHA Enforcement Authority
On September 27, 2021, California Governor Gavin Newsom signed Senate Bill 606 ("SB 606") into law, granting CalOSHA new tools to enforce their regulations. Most notably, the law creates a rebuttable presumption that certain violations committed by an employer that has multiple worksites are enterprise-wide and creates an "egregious" violation category, with potential for huge fines.
SB 606, which will go into effect on January 1, 2022, will have a great impact on employers with multiple worksites, as the agency will be authorized to use evidence from one worksite to establish a company-wide violation.
The bill creates a rebuttable presumption that a violation committed by an employer that has multiple worksites is enterprise-wide if CalOSHA can establish one of two elements:
That the employer has a written policy or procedure that violates CalOSHA regulations, or
The agency can show evidence of a pattern or practice of the same violation committed by that employer involving more than one of the employer’s worksites.
Additionally, the bill authorizes the agency to issue an enterprise-wide citation requiring enterprise-wide abatement if the employer fails to rebut the presumption of a violation. Thus, for establishing a company-wide violation and requiring abatement, this law will shift the burden of evidence to the employer.
The bill further creates an “egregious violation,” which subjects employers to elevated penalties because each employee exposed to an egregious violation will be considered a separate violation. CalOSHA needs to establish just one of the following seven criteria to issue an egregious violation:
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 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 of this part.
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 under this part.
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.
The Senators who authored the law utilized the COVID-19 pandemic to increase support for the bill, with Senator Lena A. Gonzalez (D- Long Beach) stating that the legislation will "address the need for stronger enforcement measures to keep workers safe as the COVID-19 pandemic continues." Senator Gonzalez further said that “We cannot allow large corporations to shrug aside their responsibilities. Paying fines that amount to no more than a tiny fraction of their profits and refusing to provide workers safe working conditions is irresponsible and unconscionable.”