Cal/OSHA Schedules Advisory Committee Meeting on Enterprise-wide and Egregious Violation Classifications Proposed Rules

Quick Hits

• On August 19, 2024, Cal/OSHA will hold an advisory committee meeting to solicit input on proposed rules on enterprise-wide and egregious violations on employee safety and health requirements.
• The California Department of Industrial Relations plans to amend the existing framework for citation classification and penalty calculations to accommodate new classifications and provide definitions and procedures for issuing enterprise-wide and egregious citations to California employers.
• The proposed regulation would increase the lookback period for assessing serious, repeat, or willful violations from three years to five years.

The advisory committee will consist of employers, employer representatives, worker representatives, trade associations, labor organizations, community groups, and public agencies. Members of the public who are not on the committee may observe the meeting and provide written comments on the proposed rules at SB606RulemakingComments@dir.ca.gov.

Proposal for Enterprise-wide and Egregious Violation Classifications

Since 2021, Labor Code sections 6317 and 6317.8 have required the Cal/OSHA to issue citations for “enterprise-wide” and “egregious” violations, and further laid out the definitions for these new classifications. The California Department of Industrial Relations plans to amend the existing framework for citation classification and penalty calculation to accommodate the new classifications and provide definitions and procedures for issuing enterprise-wide and egregious citations to California employers.

The proposed regulations set forth the definition of enterprise-wide violations pursuant to section 6317 and would add enterprise-wide violations to the regulations regarding classification and calculation of penalties for alleged violations. The addition of enterprise-wide violations to the Cal/OSHA rules would likely increase the number of citations and the monetary penalty associated with citations.

Importantly, the proposal also includes a new category of violation, “Egregious.” An egregious violation is proposed to be defined as “a willful violation” where one or more of the enumerated criteria in Labor Code section 6317.8 also is present. Those criteria include:

• “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 five or more injuries or illnesses. For purposes of this paragraph, ‘catastrophe’ means the 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 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 their health and safety responsibilities.”
• “The employer’s conduct, taken as a whole, 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 committed six or more violations that became final determinations.

The proposed regulation would also amend Title 8, sections 334-336, to increase the lookback period for serious, repeat, or willful violations from three years to five years, so as to remain consistent with the proposed five-year lookback period for egregious violations.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and will provide updates on the firm’s California and Workplace Safety and Health blogs as additional information becomes available.

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