California has signed into law SB 606, which becomes effective January 1, 2022. The regulation creates two new Cal/OSHA citations categories: “enterprise-wide” and “egregious,” and provides enhanced subpoena power during investigations. 

Some key provisions include:

Creates a rebuttable presumption that an employer with multiple worksites has committed an “enterprise-wide” violation upon Cal/OSHA’s finding that either of the following factors “is true:”

1.      “The employer has a written policy or procedure that violates the Health and Safety Code, any standard, rule, order, or regulation.”

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.”

These provisions affect the construction industry and all employers with multiple establishments in California.

Additionally, the bill authorizes Cal/OSHA to find that an employer has committed an “egregious violation” if they determine that at least one of the following seven characteristics “is true:”

 1.      “The employer, intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the known violation.”

2.      “The violations resulted in worker fatalities, a worksite catastrophe, or a large number of injuries or illnesses. 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.”

3.      “The violations resulted in persistently high rates of worker injuries or illnesses.”

4.      “The employer has an extensive history of prior violations” under section 6317 of the Labor Code.

5.      “The employer has intentionally disregarded their health and safety responsibilities.”

6.      “The employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of their duties” to provide a safe work environment.

7.      “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.”

This provision presumes that a violation in one location is evidence of a violation at another location.  It shifts the burden to the employer to prove otherwise.  Essentially Cal/OSHA may cite employers for worksites that have not been inspected based entirely on a written policy or procedure at one of the employer’s worksites.

Employer next steps include:

1.      Written safety policies and procedures should be up-to-date and consistent among locations, including the Injury and Illness Program and core programs such as fire prevention, emergency action, hazard communication, and pandemic (if required).

2.      Be sure that hazard identification and correction processes are in place and training programs are current.