As all companies doing construction work know, California’s workplace safety and health laws create a host of important obligations and standards that are enforced and regulated by the California Occupational Safety and Health Administration (Cal/OSHA). And in 2022, that will expand.
Effective January 1, 2022, Senate Bill (SB) 606 will expand the workplace safety laws and Cal/OSHA’s enforcement power. These changes will have significant effect on companies doing construction work at jobsites in and around California.
The new law introduces changes to how California employers must approach having employees at multiple jobsites. Under the new law, it is presumed that employers with multiple worksites have made “enterprise-wide” workplace safety violations in certain circumstances. Under the new law, it is presumed that a violation in one location is evidence of a violation at another location, and it shifts the burden to the employer to prove otherwise. Indeed, the new law assumes a violation is occurring “enterprise-wide” at all of the employer’s locations in the state, if either of the following is true:
- The employer has a non-compliant written health and safety policy or procedure; or
- Cal/OSHA obtains evidence of a pattern or practice of the same violation committed by the employer at any of its worksites.
This is a harsh standard. And it creates exposure to substantial penalties for non-compliance. For example, if an employer commits an enterprise-wide violation and fails to prove otherwise, the employer may be penalized with a minimum fine of $8,908, and a maximum fine of $124,709 for each violation. Importantly, each instance an employee is exposed to the violation will be considered a separate violation if Cal/OSHA issues fines and penalties. SB 606 also authorizes Cal/OSHA to issue a citation for an “egregious violation,” 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;
- The employer has intentionally disregarded its health and safety responsibilities;
- The employer’s conduct amounts to clear bad faith in the performance of its duties;
- The employer has committed a large number of violations so as to significantly undermine the effectiveness of any safety and health program that may be in place;
- The employer has an extensive history of prior violations;
- Violations resulted in worker fatalities, three or more hospitalizations, or a large number of injuries or illnesses; or
- Violations resulted in persistently high rates of worker injuries or illnesses.
Moreover, the new law provides Cal/OSHA with additional authority to force compliance. Cal/OSHA will now have the ability to: (1) issue a subpoena if the employer fails to provide to promptly provide requested information during an inspection, (2) seek an injunction restricting certain operations at a workplace on the basis of issuing a citation, or (3) seek a temporary restraining order i.e., if the operation of any equipment constitutes a serious menace to the safety of employees at that particular location.
Given these changes, it is of increasing importance for employers to reexamine their written policies and procedures to ensure compliance with Cal/OSHA standards so to avoid civil penalties. Employers must examine whether their existing policies are compliant across all worksites; scrutinizing the history of the employer’s policies in regards to Cal/OSHA evidencing a “pattern or practice” of a violation; and where necessary, implementing additional workplace safety measures such as effective communication, training, and auditing. Employers must make a good faith effort to cooperate, maintain communication, and exchange pertinent information with Cal/OSHA regarding its requests during the course of an inspection to ensure compliance with the agency. Consulting with legal counsel to discuss compliance and the new challenges created by the changes to California law is important for construction industry businesses going into 2022.
Dunn DeSantis Walt & Kendrick provides a broad spectrum of legal services to businesses of all sizes, from small, local start-ups and non-profits to large, national companies. DDWK’s real estate development and construction practice includes representing all segments of the development and construction industries on both private and public projects.
You can find additional information and resources related to helping business owners and their businesses through COVID-19 challenges on the DDWK website.
