SB 606: What is it?

SB 606 has been signed into law, greatly expanding Cal/OSHA’s enforcement authority.

This law creates two new categories of violations – “Enterprise-wide Violations” and “Egregious Violations” each subject to the same penalties as willful or repeated violations along with increased subpoena power.

“Enterprise-Wide Violations” creates a rebuttable presumption that if a violation has been committed at one worksite, it has likely been committed at multiple worksites and, without requirement for investigation, will allow Cal/OSHA to issue citations for each additional worksite the employer operates. This means that employers may be cited for worksites that have not been inspected by Cal/OSHA, based entirely on a violation at one of the employer’s worksites.

“Egregious Violations” can have exponential financial consequences for employers now that “each instance” where an employee is exposed to the violation “shall be considered a separate violation for purposes of the issuance of fines and penalties.” The law directs Cal/OSHA to issue an “egregious violation” for any of the following:

• 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 or illnesses;
• 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.

SB 606 also provides Cal/OSHA with the authority to issue a subpoena if the employer fails to “promptly provide” requested information during an inspection, and may enforce the subpoena if the employer “fails to provide the requested information within a reasonable time.” However, these timelines are not defined.

When does it go into effect?

January 1, 2022

What is the impact?

• Potential for enterprise-wide citations requiring enterprise-wide abatement for presumed violations at multiple worksites without the requirement for investigation by Cal/OSHA, shifting the burden to the employer to prove otherwise.
• Willful or repeated violations including “enterprise-wide” violations have a maximum civil penalty of $124,709 for each violation.
• Potential for multiple citations, fines, and penalties for each instance an employee is exposed to a violation
• Greater subpoena power by Cal/OSHA

Who does it affect?

Employers who operate multiple worksites may feel the greatest impact of SB 606 under the new “enterprise-wide” category of violation where Cal/OSHA has extended authority to issue multiple citations for assumed violations at each individual worksite without requirement for investigation.

All employers, no matter the size of their operation, can be affected by SB 606 and the introduction of the “egregious violation” where each instance an employee is exposed to a violation will be considered a separate violation for fines and penalties.

Next steps for employers

• Employers should carefully review their written safety programs to ensure total compliance and emphasize full involvement from all employees, supervisors, and management
• Make sure safety programs are administered with adequate training consistently across all worksites by clearly identifying roles and responsibilities to each employee
• Develop a system for ensuring employees comply with safe and healthful work practices
• Develop a system for clear and consistent communication with employees about safety and health compliance standards
• Set consistent procedures for identifying and evaluating workplace hazards including regular inspection to ensure total compliancy at each worksite
• Investigate all injuries or illnesses and take corrective action promptly based on the severity of the hazard
• Provide initial and ongoing training on both general and job or hazard-specific safety and health practices
• Adequately document all inspections, training, investigations, corrective actions, maintenance, or other standard-specific requirements
• Promptly respond to any information requests and communicate when documents will be produced to minimize the likelihood of receiving a subpoena

If you have any questions relating to SB 606 or any other workplace safety compliance topics, please reach out to our office. We have the experience and resources to help you assess and develop your written safety programs from consultative support to comprehensive safety documentation management.

Resources:

California Raises the Stakes for Workplace Safety Compliance with New Penalties | Fisher Phillips

Cal/OSHA’s Enforcement Authority Expanded (natlawreview.com)

Downloadable Document:

Click the image or use this link to download this guide to understanding SB 606 and what it means for your business.