Cal/OSHA Set to Implement New Violation Classifications

Two New Violation Classifications

Beginning January 01, 2022, the Division of Occupational Safety and Health (DOSH), more commonly known as Cal/OSHA, will officially start expanding its citation enforcement for employers by implementing two new classifications of violations.

California Governor, Gavin Newsome, signed SB 606 on September 27, 2021, which is the Bill that gives Cal/OSHA the necessary power to adequality enforce these new violations for the purpose of the life, safety and health of employees at all places of employment. This new law will have one of the more significant impacts on employers in California since the most recent penalty increases for all violation classifications.

The biggest impact will come to large employers with multiple worksites. The center of SB 606 is the creation of two new categories for which Cal/OSHA may cite an employer who is in violation. The new classifications are as follows: “Enterprise-Wide Violations” and “Egregious Violations”. These are in addition to the already existing classifications of Other-than-Serious, Serious, Willful, and Repeat violations.

Enterprise-Wide Violations

For employers who have multiple worksites and meet one of the two criteria below, they may be considered as an “Enterprise-Wide” violation under the new law:

1. “The employer has a written policy or procedure that violates Section 25910 of the Health and Safety Code, any standard, rule, order, or regulation,” as specified in the California Labor Code.
2. There is “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.”

Simply put, employers who have written safety & health programs in place that cover multiple worksites may be cited across multiple locations (enterprise-wide), when a violation occurs at any one of its locations, and it is apparent that a pattern exists at multiple sites.

Egregious Violations

This new violation could have a major impact for employers if found to commit an “egregious violation”. If an employer has been determined to have committed and egregious violation, Cal/OSHA has the authority to issue a citation for each egregious violation, along with each instance of an employee being exposed to that violation. Meaning a single violation could result in multiple penalties for each affected employee. Cal/OSHA only needs proof of one of the below situations to determine egregious conduct:

• 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
• 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 duty to provide a safe work environment; or
• The employer has committed a large number of violations so as to undermine significantly the effectiveness of any safety and health program that might be in place.

Other guidelines under SB 606 allow Cal/OSHA to issue a subpoena when an employer fails to provide requested information to the agency in a timely manner, however it has not been defined as to what a reasonable amount of time would be.

Employers with multiple worksites are encouraged to begin preparing by ensuring their written safety programs are completely up to date and accurately reflect their operations across all sites.

Contact Lancaster Safety Consulting for assistance with conducting a workplace audit to determine steps that may need to be taken to comply with these new violations.