CAL/OSHA is working on new rules that would crack down on and step up enforcement and penalties against California employers that commit “egregious” and “enterprise-wide” workplace safety violations. To enforce the impending rules, the agency is ramping up hiring of investigators to identify egregious violators and refer more employers for criminal prosecution.
The forthcoming rules would impose substantial penalties on companies that have shown disregard towards California workplace safety regulations and the wellbeing of their employees. Employers cited for egregious violations could be fined up to $158,000 “per instance,” meaning it can be applied for each employee exposed to the violation.
What’s on Tap
Enterprise-wide Violation
Under the proposed rules, a violation is enterprise-wide if an employer has multiple worksites and either of the following is true:
- The employer has a written policy or procedure that violates occupational safety and health regulations; or
- The Division of Occupational Safety and Health has evidence of a pattern or practice of the same violation or violations involving more than one of the employer’s worksites.
The proposed penalty is multiplied by the number of worksites covered at inspection, up to a maximum of $158,727 per exposed worker, and will be adjusted each year for inflation.
Egregious Violation
The proposed maximum penalty for egregious violations will be $158,727. Importantly, each employee that is exposed to a violation would be considered a separate violation. The penalty can be assessed on a per-instance basis.
Egregious Violation Criteria
The proposed rules define an egregious violation as a willful violation where the employer has had a previous egregious violation in the past five years. One or more of the following must apply:
- The employer intentionally made no reasonable effort to eliminate a 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 its health and safety responsibilities, such as by failing to maintain an Injury and Illness Program, ignoring safety hazards, or refusing to comply with regulations.
- The employer’s conduct 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 has committed more than five violations of any Title 8 standard that has become finalized.
Employers Should Double Down on Workplace Safety
Violations resulting in worker fatalities, a worksite catastrophe, or five or more injuries or illnesses will face harsher scrutiny. A catastrophe is defined as inpatient hospitalization of three or more workers due to a workplace hazard. Additionally, within the 12 months immediately preceding the underlying violation, 10% of all employees at the cited worksite sustaining workplace injuries or illnesses could trigger these penalties.
The Takeaway
The proposed regulations pose the largest risk for companies with multiple locations. Fines will be adjusted each year to account for inflation. Employers should double down on their workplace safety efforts and ensure that there is buy-in to the program from top management down to supervisors and line workers at all locations.