The California Division of Occupational Safety and Health (Cal/OSHA) will have expanded enforcement authority starting January 1, 2022, with the creation of two new classes of violations: enterprisewide and egregious. Governor Gavin Newsom (D) recently signed S.B. 606 into law, authorizing the new citation and penalty authority.
If a cited employer has multiple worksites, there will be a “rebuttable presumption” that the violation is enterprisewide if an employer has a written policy that violates a Cal/OSHA standard or if there is evidence of a pattern or practice of violations. There will be a penalty of up to $124,709 for each enterprisewide violation.
A violation will be considered egregious if one or more of the following are true:
- The employer, intentionally, through action or inaction, made no reasonable effort to eliminate a known violation or committed so many violations so as to undermine the effectiveness of the employer’s safety and health program.
- The employer has an extensive history of prior violations or intentionally has disregarded its health and safety responsibilities, or the employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of its workplace safety and health duties.
- The violations resulted in worker fatalities, a worksite catastrophe (inpatient hospitalization of three or more employees, regardless of duration, resulting from an injury, an illness, or exposure caused by a workplace hazard or condition), a large number of injuries or illnesses, or persistently high rates of worker injuries or illnesses.
Each instance of an employee exposed to an egregious violation will be considered a separate violation for purposes of assessing penalties.
Updated COVID-19 guidance
Cal/OSHA recently confirmed it would adopt a “comparable standard” if the Occupational Safety and Health Administration (OSHA) adopted a federal standard requiring employee COVID-19 vaccination or weekly testing for employers of 100 or more employees, according to an update to the state agency’s COVID-19 frequently asked questions (FAQs).
President Joe Biden’s six-point national COVID-19 strategy, unveiled September 9, includes development of an OSHA emergency temporary standard (ETS) requiring employee vaccinations or weekly negative tests. California and other states with their own occupational safety and health programs would have 30 days after a federal ETS to adopt their own rules.
California is one of the states that maintains an occupational safety and health plan approved and monitored by federal OSHA. “State plan states” must adopt occupational safety and health standards “at least as effective” as OSHA’s federal standards.
Under the CDPH guidelines, asymptomatic employees can discontinue self-quarantine after 7 days from the date of last exposure if a diagnostic specimen is collected after day 5 and the person tests negative or 10 days from the date of last exposure without testing. The first option is shorter than the 10-day requirement in Cal/OSHA’s June 17 ETS.
Cal/OSHA clarified the relationship between its requirements and the CDPH guidelines. Under the CDPH guidelines, employees may return to work if they continue daily self-monitoring for symptoms 14 days from their last known exposure and follow all recommended nonpharmaceutical interventions (face coverings, hand-washing, avoiding crowds, and staying at least 6 feet from others) 14 days from their last known exposure. If an employer prevents a worker from complying with conditions under the CDPH guidelines, the longer exclusion periods specified in the ETS will apply, according to Cal/OSHA. Under the June 17 ETS, employees who have had a close contact but never developed any COVID-19 symptoms may return to work when 10 days have passed since their last known close contact.