October 2024 – Proposed Rules Take Aim at ‘Egregious’ Violators

CAL/OSHA is working on new rules that would crack down on and step up enforcement and penalties against California employers that commit “egregious” and “enterprise-wide” workplace safety violations.

To enforce the impending rules, the agency is ramping up the hiring of investigators to identify egregious violators and to refer more employers for criminal prosecution.

The forthcoming rules would impose substantial penalties on companies that have shown a disregard towards California workplace safety regulations and the wellbeing of their employees.

Employers that are cited for egregious violations could be fined up to $158,000 “per instance,” meaning it can be applied for each employee exposed to the violation.

Here’s what’s on tap:

Enterprise-wide violation

Under the proposed rules, a violation is enterprise-wide if an employer has multiple worksites and either of the following is true:
• The employer has a written policy or procedure that violates occupational safety and health regulations; or
• The Division of Occupational Safety and Health has evidence of a pattern or practice of the same violation or violations involving more than one of the employer’s worksites.

Egregious violation

The proposed rules define an egregious violation as a willful violation where the employer has had a previous egregious violation in the past five years. One or more of the following must apply:

• The employer intentionally made no reasonable effort to eliminate a known violation.
• 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 its health and safety responsibilities, such as by failing to maintain an Injury and Illness Program, ignoring safety hazards, or refusing to comply with regulations.
• The employer’s conduct 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 has committed more than five violations of any Title 8 standard that has become TWO NEW PENALTY finalized.
• The violations resulted in worker fatalities, a worksite catastrophe, or five or more injuries or illnesses. Catastrophe is defined as inpatient hospitalization of three or more workers from a workplace hazard.
• Within the 12 months immediately preceding the underlying violation, 10% of all employees at the cited worksite sustained workplace injuries or illnesses.

The takeaway

The proposed regulations pose the largest risk for companies with multiple locations.
Fines will be adjusted each year to account for inflation. Employers should double down on their workplace safety efforts and ensure that there is buy-in to the program from top management down to supervisors and line workers at all locations.