Cal/OSHA Set to Implement New Standards for Repeat Violations

11/18/2016

In August of 2015, California’s Division of Occupational Safety and Health (Cal/OSHA) issued a Notice of Proposed Rulemaking regarding changes to the agency’s definition of repeat violations under the California Health and Safety Code. The Final Rule aims to bring that definition into alignment with federal OSHA standards, creating a broader interpretation of what constitutes a repeat violation, and potentially imposing tighter restrictions on employers in the Golden State. After more than a year of public comment and subsequent revisions, the final rule is set to go into effect on January 1, 2017.

Prior to the proposed rule, Cal/OSHA’s definition of a “repeat” violation had been defined much more narrowly than the corresponding federal standard. To qualify as a repeat violation:

• Employers in California must have been previously cited for that same violation under the same standard
• The employer must have violated the same standard within three years of a prior citation
• The employer must have successfully abated the originally cited violation, essentially meaning that the initial violation had to have been resolved in order for it to occur on a separate and subsequent occasion
• Both violations must have occurred at “the same work site or within the same geographic region of the Division”

Alignment with federal OSHA standards will create three major changes to Cal/OSHA’s definition of repeat violations:

• To qualify as a “repeated” violation, the most recent citation need not be for the exact same standard or regulatory requirement as a prior violation. The Final Rule states that in determining the “repeated” nature of a violation, the Division need only find violation of a “substantially similar regulatory requirement,” or the presence of “essentially similar conditions or hazards.”
• The “look-back” period, which essentially amounts to the probationary period for determining the repeated nature of a violation, has been extended from three years to five.
• The words “the same work site or within the same geographic region of the Division” have been struck from California Code of Regulations, title 8, section 334(d)(1), removing any geographic restriction on the determination of a repeated violation. Multiple violations of the same or similar regulatory requirements, regardless of which of the employer’s locations they occur at within the State of California, will be classified as repeated violations.

This final change, which eliminates geographic restrictions when determining the repeated nature of a violation is of particular significance. Recently, federal OSHA has demonstrated an emphasis on addressing systemic hazards present across multiple facilities owned and operated by a single employer. In a 2014 ruling, the Occupational Safety and Health Review Commission (OSHRC) upheld an OSHA enforcement order against Central Transport LLC, compelling the company to perform an enterprise-wide hazard abatement in response to repeated violations for hazards found across several of its more than 200 facilities. OSHRC concluded that, if OSHA finds a multi-site organization is repeatedly failing to comply at some of its locations, it can order all of that employer’s locations to expend the time and money necessary to show compliance through an abatement order. It is highly likely that Cal/OSHA will adopt a similar policy for addressing repeated violations across multiple facilities within the state, and the removal of this geographic restriction may be a pretext to the implementation and enforcement of similar enterprise-wide hazard abatement orders.

The Final Rule incorporates feedback from two separate public comment periods, during which more than 130 formal comments were submitted. Many of these comments challenged the rule based on the argument that existing Cal/OSHA regulatory standards already achieve a level of workplace safety that exceeds the federal standards, and that the proposed rule was not necessary. However, this argument was roundly rejected on the grounds that Cal/OSHA’s definition of “repeated violation” was much narrower than the federal standard, and therefore less effective. Failure to implement a standard which meets or exceeds that of federal OSHA would result in California’s occupational safety and health state plan being effectively repealed by the U.S. Secretary of Labor, and its regulatory and enforcement authorities being preempted by federal OSHA.

Such a scenario occurred as recently as February, 2015 in Arizona where the Arizona Division of Occupational Safety and Health (ADOSH) nearly had its state plan repealed after implementing a fall protection standard that was determined to be significantly less effective than the federal standard. 29 U.S.C § 667 clearly defines the authority of the Secretary of Labor to approve state plans, and to reject those plans if they are not “at least as effective in providing safe and healthful employment and places of employment” as the federal standards.

The repeal of Cal/OSHA’s state plan would almost certainly be accompanied by a withdrawal of federal funding, which constitutes as much as 50% of Cal/OSHA’s annual budget.  California Labor Code section 50.7(d) requires the Governor and the Director of Cal/OSHA to take all steps necessary to prevent withdrawal of Federal OSHA’s approval for the California state plan. Therefore, to maintain federal approval, California must enforce job safety and health standards that are “at least as effective as” their federal counterparts.

In addition to aligning its standards with those of federal OSHA, Cal/OSHA intends to increase its civil penalty amounts over the coming months to reflect recent increases at the federal level. As of August 1, 2016, OSHA penalties have increased 78% over their previous maximum amounts in response to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. OSHA penalties for violations that are determined to be willful or repeated have increased from $70,000 to $124,709 per violation, with a new daily penalty amount of $12,471 per violation, per day that the employer fails to abate. For employers in California, particularly those with multiple work sites or facilities throughout the state, greater communication and consistency in their hazard awareness, incident prevention, and safety training programs is critical.

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