Senate Bill 606 makes amendments to California Labor Code that became effective Jan. 1, 2022, giving Cal/OSHA expanded powers and increased penalties. The bill creates two new categories of violations; “enterprise-wide” and “egregious.” The bill also authorizes Cal/OSHA to issue a subpoena should an employer fail to provide Cal/OSHA with information related to an investigation. Citations for enterprise-wide violations have the same penalties as willful or repeat violations, with a maximum penalty of up to $136,532 per violation. Below, we discuss these categories and subpoena powers with their potential impact on California employers.

ENTERPRISE-WIDE VIOLATIONS (SECTION 6317 of California Labor Code)
The bill creates a rebuttable presumption of an enterprise-wide violation when Cal/OSHA finds either of the two conditions below:

• The employer has a written policy or procedure that violates any Cal/OSHA rule, order, or regulation as stated in the California Labor Code.
• Cal/OSHA has evidence of a pattern or practice of the same violation or violations committed by the employer at multiple worksites.

When Cal/OSHA enforcement recognizes that an employer has multiple worksites that may have common policies and procedures, an enterprise-wide citation and abatement orders can be issued. The employer will then have to prove that the other worksites have different policies, procedures, and written programs and hence the violation cannot be enterprise-wide. The penalties for enterprise-wide violations are the same as the current penalties for repeat violations with a maximum of $136,532 per violation. This can be problematic for employers with multiple worksites in California that share a common safety program such as Illness & Injury Prevention Plan (IIPP) or COVID-19 Prevention Plan (CPP).

EGREGIOUS VIOLATION (SECTION 6317.8 of California Labor Code)
Cal/OSHA finds an employer has committed an “egregious violation” if one or more of the following are true:

• 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. For purposes of this paragraph, “catastrophe” means inpatient hospitalization, regardless of duration, of three or more employees resulting from an injury, illness, or exposure caused by a workplace hazard or condition.
• 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 duties.
• The 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.

SB 606 requires Cal/OSHA to treat each employee exposed to an egregious violation as a separate violation and issue fines and penalties commensurate with such violations. The employer can be subject to a significant multiplier in penalties when many violations are found to have impacted multiple employees. Cal/OSHA has issued multiple penalties under COVID-19 Emergency Temporary Standards when the employer failed to implement policies such as separation, sanitizing or face mask protocols.

SUBPOENA POWERS (SECTION 6317.9 of California Labor Code)
The bill provides Cal/OSHA with subpoena powers for information related to an investigation. Cal/OSHA has already had a formal document request process during investigations. (https://www.dir.ca.gov/DOSHPol/Document_Request1AY_072308.pdf). The bill adds that Cal/OSHA can issue a subpoena if the employer or related entity fails to promptly provide the requested information within a reasonable period of time. We have observed that DOSH Legal has, in the past, issued “Requests for Discovery” following an employer appeal of serious citations. The subpoena power adds a layer to the discovery tools available to Cal/OSHA. The term ‘reasonable time’ is not defined in the bill making it subject to the discretion of the Cal/OSHA District Manager conducting the investigation.

The new law also allows Cal/OSHA to seek injunctive relief from the Superior Court restraining the use of an equipment or process at a specific worksite if the Division has grounds to issue a citation without any bond requirements. This is another addition to the enforcement powers of Cal/OSHA. In the past, injunctive relief was only available when the “… machine, device or apparatus or equipment constitutes a serious menace to the lives or safety …”

Summary: Employers with multiple locations must have their written safety programs and policies reviewed and vetted by professionals and ensure compliance across sites as risks and penalties can be significant. Subpoena power and other discovery tools may lead Cal/OSHA to add citations and related penalties. Special attention should be given to programs including, but not limited to, CPP’s, IIPP’s, Hazard Communication Program, and Personal Protective Equipment Program. Where applicable, making safety programs location-specific may also help. Last, but not least, employers should treat Cal/OSHA citations with urgency and caution. Employers have 15 days to file an appeal. If a timely appeal is not filed, the citations and penalties cannot be contested. In high-stakes cases, competent counsel should be retained to handle investigations, file appeals for citations, if any, and provide a professional defense.

Source: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB606

US Supreme Court & Workers’ Comp Reimbursement for Medical Marijuana:
Employees injured at work have sought relief from pain by smoking marijuana. In certain instances, the treating physician has provided the injured employee access to medical marijuana and requested the Workers’ Comp carrier to pick up the tab. The Supreme Court of several states have held that the reimbursement by the insurance carrier violates the Federal Controlled Substances Act (CSA) of 1971.

Thirty-seven states currently allow the medical use of marijuana. However, the rules for medical reimbursement for marijuana by Workers’ Comp carriers are all over the place. Some states have mandatory reimbursement laws, some strictly prohibit reimbursement, and some are silent on the matter. Arizona, California, and Nevada are amongst fourteen states that do not forbid medical marijuana reimbursement, but they have said that it is not required for workers’ comp insurers. Looking at this varied landscape and the appeals from states’ Supreme Courts that have ruled against reimbursement, the U.S. Supreme Court has decided to step in. It has asked the U.S. Solicitor General to submit an amicus brief on whether workers reimbursed for the cost of medical marijuana to treat on-the-job injuries are preempted by the CSA. The Supreme Court may grant certiorari and hear the cases. Hopefully, this will provide clear guidance to the states on the issue of reimbursement for marijuana use as a treatment for on-the-job injuries.

On April 1, 2022, the U.S. House of Representatives passed legislation to legalize marijuana and eliminate the longstanding criminal penalties for anyone who distributes or possesses it. We note that Senate clearance in the past has been negative. Hence, it is unlikely that this will become law.

DISCLAIMER: The contents of this newsletter are for informational purposes only and are not to be considered as legal advice. Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers in Arizona, California, Hawaii, Idaho, Nevada, New Mexico, New York, Texas, and Virginia comply with EPA and OSHA regulations for over 34 years. Sam is a Certified Safety Professional (No. 16515) certified by the National Board of Certified Safety Professionals. Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997). Our newsletters can be accessed at www.epaoshablog.com. Your comments/questions are always welcome. Please send them to sam@cellyservices.com.