Back in 2021, Governor Newsom signed Senate Bill 606 into law. We noted in our blog post that the law would “broadly expand[] Cal/OSHA’s enforcement authority and the penalty amounts employers may be assessed.” Cal/OSHA has now issued draft amendments to the Cal/OSHA regulations based on SB 606.
What Are the Proposed Regulatory Changes?
The draft contemplates amendments to Title 8 of the California Code of Regulations, Sections 332.4, 334, 335, and 336, which include posting requirements, classifications of violations, and penalties.
The draft amendments add a new category of “Egregious” violation to section 334. An egregious violation is a Willful violation where: (1) the employer has a prior egregious violation in the last five years; or (2) one or more of the following is true:
- “The employer, intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the known violation.”
- “The employer has a history of one or more Serious, Repeat, or Willful violations or more than 20 General or Regulatory violations per 100 employees.”
- “The employer intentionally disregarded their health and safety responsibilities, such as by failing to maintain an effective and operative injury and illness program adopted pursuant to Labor Code section 6401.7 and applicable regulations of the California Occupational Safety and Health Standards Board, ignoring safety and health hazards, or refusing to comply with the Act.”
- “The employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of their duties to comply with occupational safety and health standards.”
- Within the five years preceding a citation for an egregious violation, the employer committed more than five violations that became final determinations.
- “The violations resulted in worker fatalities, a worksite catastrophe, or five or more injuries or illnesses. For purposes of this paragraph, ‘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.”
- “Within the 12 months immediately preceding the underlying violation, 10% of all employees at the cited worksite sustained workplace injuries or illnesses…”
The draft amendments also provide for a rebuttable presumption that a violation is “enterprise-wide” when either of the following is true:
- The employer has a written policy or procedure that violates certain health and safety requirements in the Health and Safety Code or stemming from the Labor Code.
- The Division has evidence of “a pattern or practice of the same violation or violations involving more than one of the employer’s worksites.”
The draft amendments propose changes to section 336 to include penalties up to $158,727 for enterprise-wide violations and separate daily penalties for failing to abate an enterprise-wide violation. Amendments to Section 336 would also require the Division to issue a separate citation and proposed penalty for “Egregious” violations, up to $158,727, for each instance of an employee exposed to that violation. The proposed amendments also address circumstances when penalties are subject to adjustments, referencing new combinations of classification. For example:
- Penalties for enterprise-wide violations are only subject to adjustment based on the size of the employer.
- Penalties for violations classified as “Egregious General” are not subject to the 50% abatement credit afforded basic General violations.
- Serious violations classified as “Egregious Serious” are not subject to an abatement credit, consistent with other types of Serious violations.
- Penalties for violations classified as “Enterprise-wide General” are only subject to the 50% abatement credit if the employer abates within a certain time period specified in the regulation.
In sum, these amendments would create increased exposure for employers who are found to have committed such violations.
Advisory Meeting
Cal/OSHA conducted an advisory meeting on August 19 on these proposed amendments to solicit feedback from stakeholders.
Following comments by members of the public notifying Cal/OSHA representatives that many stakeholders were not aware of the meeting, Cal/OSHA confirmed that it would send out additional notice and extend the time to submit public comment.
Cal/OSHA representatives covered the rulemaking process for these amendments. They noted that these regulations are under the Director of Industrial Relations section of Title 8, so they do not need to go through the usual Standards Board approval process. That said, they are still required to comply with the California Administrative Procedures Act. Under the Act, there is no requirement to hold advisory meetings, but Cal/OSHA decided to open the initial drafting process to stakeholders. Cal/OSHA confirmed that there will still be formal notice and comment periods and a public hearing on the proposed amendments.
The meeting consisted of Cal/OSHA representatives sharing a Word document of the draft regulation and taking comments section by section from stakeholders. There was extensive, collaborative discussion between stakeholders and the Cal/OSHA representatives, which went on for approximately four hours. At times, Cal/OSHA representatives even asked for specific language that stakeholders wanted to see in the regulation. There was particular attention paid to the factors for an egregious violation and general clarity of the language in the amendments.
What Happens Next?
Cal/OSHA will continue taking comments on this initial draft through October 3, 2024. The agency has indicated that it will issue a revised draft after reviewing all comments submitted.
This advisory meeting is a prime example of how important it is for employers to be involved in the rulemaking process early. This is often the time when stakeholders have the most direct access to the drafters of regulations.
We will continue to provide updates on these amendments as they go through the rulemaking process and can answer any questions you may have.
Join Conn Maciel Carey’s Cal/OSHA Rulemaking Coalition
Although we are a little more than halfway through 2024, Cal/OSHA and the Cal/OSHA Standards Board have already had a jam-packed year. To date, the Board has adopted an Indoor Heat Illness Prevention standard and revisions to the Lead regulations. A slew of new standards and revisions to existing regulations are also on the horizon, including:
- “Enterprise-wide” and “egregious” citation classifications for General Industry.
- Workplace Violence Prevention Standard for General Industry (draft recently released).
- Permanent Infectious Disease Standard for General Industry.
- Updates to the Aerosol Transmissible Diseases Standard in Healthcare.
- Cal/OSHA adoption of the fed/OSHA Worker Walkaround Rule.
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