Senate Bill 606 (“SB 606”), which was signed into law on September 27, 2021, and will become effective on January 1, 2022, significantly expands the California Division of Occupational Safety and Health’s (“Cal/OSHA”) enforcement authority, and creates two new categories of violations.
SB 606 creates an “egregious violation,” which exists where one or more of the following is found:
- The company, intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate a 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 company has an extensive history of prior violations of this part.
- The company intentionally disregarded their health and safety responsibilities.
- The company’s conduct, taken as a whole, amounts to clear bad faith in the performance of their duties under this part.
- The company 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.
Under the new law, if Cal/OSHA believes a company has willfully and egregiously violated an occupational safety or health standard, order, special order, or regulation, Cal/OSHA shall issue a citation to that company. Cal/OSHA shall issue a citation for each egregious violation, and each instance of an employee exposed to that violation shall be considered a separate violation for purposes of the issuance of fines and penalties.
SB 606 also grants Cal/OSHA the authority to issue an “enterprise-wide violation” to a company with multiple worksites in California, and the new law creates a rebuttable presumption that a violation is enterprise-wide if:
- With limited exception, the company has a written policy or procedure that violates Section 25910 of the Health and Safety Code (related to asbestos), any standard, rule, order, or regulation established pursuant to Chapter 6 (commencing with Section 140) of Division 1, or any standard, rule, order, or regulation established pursuant to this division.
- Cal/OSHA has evidence of a pattern or practice of the same violation or violations committed by the Company involving more than one of the company’s worksites.
Cal/OSHA may issue a civil penalty between $8,908 - $124,709 for each willful violation. This means a single violation can become incredibly costly very quickly if numerous employees are exposed to the violation before it is corrected.
Cal/OSHA Can Seek Subpoenas, Temporary Restraining Orders, and Injunctions
In connection with an investigation, the new law provides Cal/OSHA with authority to issue a subpoena if the company fails to promptly provide information requested by Cal/OSHA during their investigation. Likewise, SB 606 explicitly gives Cal/OSHA the authority to enforce a subpoena if the company fails to provide the requested information within a reasonable period of time.
SB 606 also gives Cal/OSHA the ability to pursue a temporary restraining order or an injunction against a company if Cal/OSHA has grounds to issue a citation, or if 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 working at that particular location.
What should employers do?
- All employers should proactively review their policies, practices, and facilities within California to ensure they are in compliance with California’s workplace safety and health laws.
- Employers must be prepared to respond to inquiries from Cal/OSHA, including requests for documentation, and carefully manage all Cal/OSHA inspections from start to finish.
Given Cal/OSHA’s ability to obtain a temporary restraining order or injunction to shut down company operations, companies must cooperate with Cal/OSHA’s investigation, and immediately remedy violations, especially enterprise-wide violations, to avoid a costly shutdown of operations.
If you have questions about the potential impacts SB 606 may have on your company, or if you have questions on any other issues relating to employment law, please contact one of our attorneys.
|Eric C. Bellafronto||Ernest M. Malaspina||Sean Bothamley|
|Karin M. Cogbill||Richard M. Noack||Jonathan Heller|
|Jennifer Coleman||Daniel F. Pyne III||Shirley Jackson|