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January 04, 2022
Expanded Cal/OSHA powers take effect

The California Division of Occupational Safety and Health (Cal/OSHA) began 2022 with new responsibilities and enhanced safety and health enforcement authority.

A new state law regarding the use of productivity quotas at warehouse distribution centers requires Cal/OSHA to inform the state’s labor commissioner whenever an employer or a site has an annual employee injury rate at least 1.5 times higher than the warehousing industry’s average annual injury rate. The law also considers any worker action to comply with safety and health requirements to be “time on task” for employers’ quota or monitoring systems.

A bill signed into law this past fall created two new classes of safety and health violations: enterprisewide and egregious.

When a cited employer has multiple worksites, the new state law created a “rebuttable presumption” that a safety or health violation is enterprisewide if an employer has a written policy violating a Cal/OSHA standard or if there is evidence of a pattern or practice of violations. Each enterprisewide violation carries a penalty of up to $124,709 but no less than $8,908 per violation.

A violation will be considered egregious if one or more of the following are true:

  • The employer, intentionally, through action or inaction, made no reasonable effort to eliminate a known violation or committed so many violations to undermine the effectiveness of the employer’s safety and health program. California’s injury and illness prevention program (IIPP) standard requires written safety and health management programs—a state requirement with no federal equivalent.
  • The employer has an extensive history of prior violations or intentionally has disregarded its health and safety responsibilities, or the employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of its workplace safety and health duties.
  • The violations resulted in worker fatalities, a worksite catastrophe (inpatient hospitalization of three or more employees, regardless of duration, resulting from an injury, an illness, or exposure caused by a workplace hazard or condition), a large number of injuries or illnesses, or persistently high rates of worker injuries or illnesses.

Each instance of an employee exposed to an egregious violation is considered a separate violation for purposes of assessing penalties.

Readopted COVID-19 ETS

California’s revised and readopted COVID-19 emergency temporary standard (ETS) takes effect January 14. The California Occupational Safety and Health Standards Board readopted the ETS for a second and final time. Under state administrative law, emergency standards remain in effect for 180 days. The board may twice readopt temporary standards for an additional 90-day period each.

The revised ETS provides clarification of employers’ notification responsibilities, giving clearer instructions on how to notify workers who were at the same worksite as a COVID-19 case during a high-risk exposure period. Employers still must notify employees, employee representatives, and any other workers at a worksite of possible COVID-19 exposures within 1 business day.

The revised emergency rule further defined acceptable face coverings, expressly excluding bandanas; balaclavas; scarves; ski masks; any single layer of fabric; and material with holes, punctures, or slits.

Employers will be required to make COVID-19 testing available at no cost and during paid time to employees who were fully vaccinated before a “close contact” with a COVID-19 case occurred, even if they are asymptomatic. The revised ETS also requires making weekly testing available to asymptomatic, fully vaccinated employees in an exposed group during outbreaks. Twice-weekly testing is required during major outbreaks.

The readopted ETS also revised the return-to-work criteria to reflect current California Department of Public Health (CDPH) guidelines, but the criteria automatically update based on new CDPH recommendations.  

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