State Senator Lorena Gonzalez (D-Long Beach) introduced Senate Bill 606 on February 18, 2021. The bill adds three new sections to the Labor Code under the semblance of workplace safety but could drastically increase employer penalties and burdens of proof. Specifically, the bill 1) imposes increased penalties to “egregious employers” who violate Cal/OSHA rules, 2) provides the Division of Occupational Safety and Health ("DOSH") with expanded authority to issue certain citations and seek a temporary restraining order and 3) creates a rebuttable presumption for alleged employer retaliatory conduct. While this proposed Labor Code section makes no mention of COVID-19, the bill's drafter undoubtedly contemplated the current COVID-19 pandemic and related safety regulations.
First, proposed Section 6317.8 of the Labor Code provides that if DOSH believes an “egregious employer” willfully violated a Cal/OSHA standard, order, special order, or regulation, DOSH must issue a citation for each violation and each employee exposed to that violation shall be considered a separate violation for purposes of the issuance of fines and penalties. In effect, an “egregious employer” could face four times the normal fine for one violation if that violation impacted four different employees. With a current maximum penalty for a willful citation at $132,765 for a single violation, employer penalties could exponentially increase with multiple employee exposures stemming from a single violation.
To be considered an “egregious employer” one of the following seven things must occur:
- The employer intentionally, either through voluntary action or inaction, made no reasonable effort to eliminate the known violation
- The violations resulted in worker fatalities, worksite catastrophe, or a large number of injuries or illnesses
- The violation 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
Second, proposed Labor Code section 6317.10 provides DOSH the broad authority to do any of the following if it determines an employer-wide written policy or practice is a violation:
- Issue a citation and/or
- Seek a temporary restraining order
Notably, this section creates a rebuttable presumption that a written employer policy or practice that violates the Health and Safety code, or this proposed code section, exists at all employer worksite locations. It further provides the OSH Appeals Board with authority to issue an order of abatement for the employer wide written policy or practice.
Third, proposed Labor Code section 6409.7 creates a rebuttable presumption that an employer’s action is retaliatory if there is any adverse action within 90 days of an employee doing the following:
- Disclosing a positive test or diagnosis resulting from an exposure at the place of employment or worksite or of a communicable disease
- Requesting testing as a result of an exposure at the place of employment or worksite
- Requesting personal protective equipment that is reasonable under the circumstances
- Reporting a possible violation of an occupational safety or health standard, order, special order, or regulation.
In effect, if an employer had a good-faith basis in making an adverse employment decision, the employer would have the burden to show its conduct was not retaliatory if the decision was made within 90-days of any of the above-mentioned occurrences.
The bill is expected to be heard in its first policy committee meeting this month.
"This bill would require the division to issue a citation to an egregious employer, as defined, for each willful violation, and each employee exposed to that violation would be required to be considered a separate violation for purposes of the issuance of fines and penalties, as provided."