Gov. Newsom has just signed new legislation under SB 606, laying out some rather stiff new rules for violation of Cal/OSHA requirements. Independent HR consultants should be wary of this. Here are the particulars:
Summary:
This Act does not create any new safety rules. Instead, under certain circumstances, it adds following:
- A presumption that safety violations may be companywide, and
- In some cases, giving Cal/OSHA subpoena power over multiple jobsites and overall company records.
This expansion can be quite burdensome for a company and HR consultant. For example, assume Mr. A is seriously injured at work. The company will have no problem divulging all the records related to this single individual and single incident. But the worst nightmare is if Cal/OSHA subpoenas companywide records; information on similar injuries; multiple employee records; multiple incident reports; companywide safety measures and amendments; and the like. In those cases, Cal/OSHA would essentially be conducting a “fishing expedition”: without any particular probable cause, looking through records in hopes of finding something.
Cal/OSHA can only do this if there is evidence of an overall “pattern and practice”. But this new law gives it more power in that regard. For example, assume there is an investigation of a safety violation as to Mr. B at Jobsite #1. In the process of the investigation, Mr. B remarks he has friends/heard through the company grape vine that Jobsite #2 has similar violations. On this rather skimpy evidence, based upon the rebuttable presumptions given in this legislation, it might empower Cal/OSHA to subpoena those other worksites.
Never underestimate the power of a rebuttable presumption. Upon the simple showing of some credible evidence, it is presumed there is a violation and requires the company to rebut same.
Effective Date: January 1, 2022.
Employers: All companies, regardless of the number of employees.
Enterprise-wide Violations:
Most Cal/OSHA violations relate to a single jobsite. But then there are companies that have multiple sites. The new law relates to the latter. If the violations involve more than one site, penalties and subpoenas may be issued companywide. This involves the following:
- The company has a written policy (for example, in an employee handbook, job posting, memo, notice or circular) that violates Health & Safety Code 25910 (spraying a substance containing asbestos) or any other Cal/OSHA regulation (i.e., the huge list of safety related regulations throughout California). Note that if a company has an invalid policy, is presumed to apply to all of its worksites and a Cal/ OSHA inspector does not have to go to each one to find a violation. In other words, if there is a written company policy, it will be considered applicable to all company premises.
However, excluded from a violation is a Cal/OSHA emergency policy made within the previous 30 days.
OR
- Cal/OSHA finds a “pattern or practice” of the same violation at multiple worksites.
If 1) or 2) applies, there will be a rebuttable presumption of violation. This means Cal/OSHA can assume there has been improper conduct and you have to prove otherwise.
It would be relatively rare that a company would put in writing a directive that employees observe some unsafe work practices. If violations are allowed to occur, it would probably be because of inadvertence or lack of attention.
What readily comes to mind is a COVID violation. This is particularly difficult because the CDC continues to change its recommendations. Do your best to keep up with the following health regulations that may be in effect or have been eliminated:
- Masking.
- Social distancing.
- Whether an employee has been exposed to an infected person within 6 feet and for a continuous 15-minute period.
- If and when a vaccination is mandatory.
- Giving employees a Notice of Potential Exposure.
- Reporting to the local Department of Health (for example, if there have been three or more employees infected within a two-week period).
- Not sending an employee home if they have tested positive or have symptoms.
- Refusing to abide by the 2021 California Supplemental Sick Leave Law as to COVID.
Egregious Violations:
The law also introduces a new concept called an “egregious violation”. This would include the following:
- The employer, intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the known violation. This typically applies well beyond simple carelessness; namely if the company has actual knowledge of the infraction and purposely does nothing to correct or report.
- The violations resulted in worker fatalities or a worksite catastrophe (defined as inpatient hospitalization of three or more employees).
- 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.
This applies to serious injuries that may have occurred within five years. If found, Cal/OSHA may not issue the more lenient ”Notice in Lieu of Citation”. Instead, a formal citation will be issued.
Subpoena Power:
As an additional punch to the law, it now allows Cal/OSHA to subpoena, potentially companywide, records that the company fails to promptly, within a reasonable amount of time, provide.
Conclusion:
This certainly gives Cal/OSHA the potential for great power–if it wishes to use it. Remember: in already being spread thin, getting access to voluminous records means it will take much staff time to review, organize and analyze. For this reason, it appears the new law applies most readily to a minority of flagrant and abusive cases. Notwithstanding, California employers should remain vigilant. And HR consultants should also be careful as well.
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