By Sean Kearney*, Eric Compere, and Alka Ramchandani-Raj
Among the many new California bills signed into law this session are two that amend the state's workplace safety laws. Senate Bill (SB) 606 creates new classes of health and safety violations and dramatically increases liability for non-compliant written workplace safety and health programs. Assembly Bill (AB) 654 makes notable revisions to an employer's COVID-19 exposure notification and reporting requirements. Each of these new laws is discussed in turn.
Senate Bill 606, effective on January 1, 2022, includes new categories of employer violations (enterprise-wide and egregious), Cal/OSHA compliance tools (subpoenas, injunctions, and temporary restraining orders), and civil penalties.
Egregious Violations with Penalty Multipliers Per Exposed Employee
SB 606 creates a new category of "egregious violations," which means one or more of the following is true:
- The employer, intentionally through conscious, voluntary action or inaction, made no reasonable effort to eliminate a known violation;
- Violations resulted in worker fatalities, three or more hospitalizations, or a large number of injuries or illnesses;
- Violations resulted in persistently high rates of worker injuries or illnesses;
- An employer has an extensive history of prior violations;
- An employer has intentionally disregarded its health and safety responsibilities;
- An employer's conduct amounts to clear bad faith in the performance of its duties; or
- An employer has committed a large number of violations so as to undermine significantly the effectiveness of any safety and health program that may be in place.
The amended law requires that each instance an employee is exposed to the violationbe considered a separate violation for purposes of issuing fines and penalties. Similar laws multiplying labor code violation penalties by employee headcount, such as the Private Attorneys General Act (PAGA), have long been a source of concern for California employers.
What Does This Mean for Employers?
Employers need to be extremely careful during the pandemic. Multiple outbreaks, multiple fatalities, or hospitalizations, and lack of implementation or enforcement of policies and procedures, may lead to Cal/OSHA penalties per employee.
SB 606 also creates a rebuttable presumption that a health and safety violation by an employer with multiple worksites is enterprise-wide if either of the following is true:
- The employer's written policy or procedure violates Cal/OSHA regulations; or
- Cal/OSHA has evidence of a pattern or practice of the same violation committed by the employer at one or more of its worksites.
If an employer is unable to rebut the presumption, Cal/OSHA may issue an enterprise-wide citation requiring enterprise-wide abatement, which includes heightened penalties up to a maximum of $124,709 per violation.
Cal/OSHA cannot assess an enterprise-wide violation if the policy is based on an emergency regulation adopted or amended within the last 30 days, commencing from the date the standards board votes to adopt or amend the emergency regulation.
The new rule also allows Cal/OSHA to issue a subpoena if the employer fails to provide requested policies and procedures promptly.
What Does This Mean for Employers?
Employers should give special consideration to written programs that could span multiple sites, including but not limited to Injury and Illness Prevention Programs (IIPP), COVID-19 Prevention Plans (CPP), Respiratory Protection Plans, Hazard Communications and Chemicals Programs, Ergonomic Programs, Fire Prevention Plans, Emergency Action Plans, Heat Illness Prevention Plans (HIPP), Workplace Violence Prevention Plans, Code of Safe Practices, Personal Protective Equipment (PPE) Trainings and Recordkeeping Programs.
More than ever, employers with multiple worksites should ensure their written policies and procedures do not violate specified occupational safety and health provisions. Employers should make their programs location-specific where possible.
Last year, the California Legislature enacted AB 685, which codified COVID-19 exposure notification/reporting requirements to employees, subcontractors, employee representatives and government entities, and made other major legislative changes. On October 5, 2021, California AB 654 became effective. This law somewhat limits COVID-19 outbreak reporting and other required notifications for certain employers, and updates several provisions of AB 685. Key takeaways include the following:
- The new law provides clarity as to when to give COVID-19 exposure notifications to a bargaining representative and narrows the group that should receive this notice.
- The outbreak reporting timeline is now one business day or 48 hours, whichever is later. Previously, the law stated that employers had to notify the local public health agency within 48 hours of determining its facility was experiencing a COVID-19 outbreak. In addition, under the new law's revisions, an employer does not need to provide notice on weekends and holidays.
- The prior law exempted certain employers from reporting outbreaks to the local public health agency. The amended law adds adult day health centers, community clinics, community care facilities and child daycare facilities as additional entities exempt from reporting. Employers should be diligent about reporting outbreaks if they are not exempt.
- The definition of "worksite" has been clarified for the purposes of exposure notifications. The new definition specifically excludes telework. In addition, in a multi-worksite environment, the employer need only notify employees who were at the same worksite as the qualified individual.
- The law simplifies who must be provided with notification of COVID-19-related benefits. Previously, employees who may have been exposed had to be notified of COVID-19-related benefits, which may have resulted in some guesswork as to whether the person was exposed. Now, notification is required to all employees who were on the premises at the same worksite as the qualifying individual within the infectious period, which is an arguably simpler method.
- The law changes who must be notified of cleaning and disinfection plans. Previously, all employees and the employers of subcontracted employees had to be notified of disinfection and safety plans. Now, employers are required to notify those employees, employers of subcontracted employees, and exclusive employee representatives who were on the premises at the same worksite as the qualifying individual within the infectious period of the cleaning and disinfection plans the employer is implementing. The updated requirement is somewhat less burdensome and more targeted.
What Does This Mean for Employers?
In some respects, the reporting requirements have been eased, but employers should be mindful that many other actions are still required to be taken within one business day a notice of potential exposure. Employers should pay particular attention to the duty to provide written notice to employees, their representatives, and employers of subcontracted employees who were on the premises at the same worksite as the qualifying individual within the infectious period. Cal/OSHA is mandated under section 6409.6(l) to enforce most notification requirements where it "shall" issue a citation. Employers should review their notification processes for compliance with the recent change in law.
* Sean Kearney is a pre-bar associate in Littler's San Francisco office.
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