California is one of 22 states that maintain their own Occupational Safety and Health Administration plan. Cal/OSHA was enacted in 1973 pursuant to authority granted by Federal OSHA. The California plan must assure safe and healthful working conditions for all California employees through enforcement of effective regulations.
To ensure that the California plan provides regulations at least as effective as Federal OSHA, California is subject to annual audits by the federal government (through Federal Annual Monitoring and Evaluation [FAME]).
In June 2016, Federal OSHA announced a 78% increase in civil penalties for violation of Federal OSHA regulations that occurred after November 2, 2015, noting that there had been no increase in civil penalties since 1990.
All states with their own Occupational Safety and Health Administration plans are required to adopt maximum penalty levels that are at least as effective as Federal OSHA. It is anticipated that Cal/OSHA will move quickly to update its penalties as required by Federal OSHA. Penalties for “willful@ and “repeat” violations will increase from the current maximum penalty of $70,000 to $124,709.
In addition, effective January 1, 2017, Cal/OSHA has adopted a significantly broader definition of a “repeat” violation under California=s Occupational Safety and Health Administration plan. Prior to January 1, 2017, Title 8 CCR section 334(d) provided that employers are subject to being cited for a “repeat” violation when the employer was previously cited for the same or similar violation within the prior three years. The Division was limited to issuing a repeat violation only when the violation occurred at the same site as the initial violation.
The regulation as amended and effective January 1, 2017 has now increased the “look back” period from three years to five years and, more significantly, can use earlier violations occurring at any site within the state of California.
According to Cal/OSHA, the increased penalties and the broader definitions will require California employers to comply with safety and health regulations at all of their locations. With a new tool in its toolbox, expect the Division to aggressively enforce the recently amended regulations.
Because the “look back” period has increased from three years to five years, and since there is now an elimination of the single-site requirement, employers will have to carefully consider whether to pursue appeals.