Amended  IN  Senate  March 25, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Senate Bill
No. 606

Introduced by Senator Gonzalez
(Principal coauthor: Assembly Member Lorena Gonzalez)

February 18, 2021

An act to amend Sections 6317, 6323, 6324, 6427, 6428, 6429, 6430, and 6602 of, and to add Sections 6317.8, 6317.10, 6317.9, and 6409.7 to the Labor Code, relating to occupational safety.


LEGISLATIVE COUNSEL'S DIGEST


SB 606, as amended, Gonzalez. Workplace safety: citations: violations of statutes: enterprise-wide violations: employer retaliation.
Existing law gives the Division of Occupational Safety and Health, within the Department of Industrial Relations, the power, jurisdiction, and supervision over every employment and place of employment in this state, which is necessary to adequately enforce and administer all laws requiring that employment and places of employment be safe, and requiring the protection of the life, safety, and health of every employee in that employment or place of employment. Existing law requires the division to enforce all occupational safety and health standards, as specified, and to issue a citation for a violation relating to those standards. of provisions relating to the spraying of asbestos, or any standard, rule, order, or regulation established pursuant to specified provisions of the California Occupational Safety and Health Act of 1973 if, upon inspection or investigation, the division believes that an employer has committed a violation. Existing law imposes penalties of certain maximum amounts depending on whether the violation is serious, uncorrectd, or willful or repeated. Existing law authorizes the division to seek an injunction restraining certain uses or operations of employment that constitute a serious menace to the lives or safety of persons, as specified.
This bill, instead, would require the division to issue a citation for a violation of provisions relating to the spraying of asbestos, certain employment safety related provisions of the Labor Code, or any standard, rule, order or regulation established pursuant to specified provisions of the California Safety and Health Act of 1973 or other safety related provisions of the Labor Code if, upon inspection or investigation, or upon evidence or documents obtained by the division in lieu of or in addition to an on-site inspection, the division believes that an employer has committed a violation. The bill would make conforming changes to the above-described penalty provisions, and would authorize the division to seek an injunction restraining certain uses or operations of employment if it has grounds to issue a citation pursuant for the above-described violations, as specified.
This bill would create a rebuttable presumption that a written policy or procedure of an employer with multiple worksites that commits those violations constitutes a violation that is enterprise-wide, and would require the division to issue an enterprise-wide citation requiring enterprise-wide abatement based on that written policy or procedure. The bill would authorize the division to issue an enterprise-wide citation requiring enterprise-wide abatement based on evidence of a pattern of practices involving more than one location of the employer. The bill would impose specified requirements for a stay of abatement for a serious enterprise-wide citation, including, among requirements, that the Occupational Safety and Health Appeals Board finds that no employee is exposed to the unsafe or unhealthful condition and that the condition is not likely to cause death, serious injury or illness, or serious exposure to an employee. The bill would require an enterprise-wide violation to be subject to the same penalty provision as willful or repeated violations.
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.

This bill would authorize the division to issue to an employer with multiple places of employment a citation, seek a temporary restraining order against such an employer, or both issue a citation and seek an order, with regard to an employerwide written policy or practice that violates the Health and Safety Code or the Labor Code. The bill would authorize the Occupational Safety and Health Appeals Board to issue an order of abatement for the employer-wide written policy or practice. The bill would establish a rebuttable presumption that a written employer policy or practice that violates the Health and Safety Code or the Labor Code exists at all places of employment of the employer and citations may be issued accordingly.

Existing law prohibits an employer from retaliating against a worker for disclosing a positive Coronavirus (COVID-19) test, diagnosis, or order to quarantine or isolate.
This bill would establish a rebuttable presumption that an employer’s actions are retaliatory if an employer takes adverse action against an employee within 90 days of the employee doing certain things, including, but not limited to, disclosing a positive test or diagnosis of COVID-19 resulting from an exposure at the place of employment or worksite or of a communicable disease, worksite, requesting testing for COVID-19 as a result of an exposure at the place of employment or worksite, and reporting a possible violation of an occupational safety or health standard.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 6317 of the Labor Code is amended to read:

6317.
 If, upon inspection or investigation, or upon evidence or documents obtained by the division in lieu of or in addition to an onsite inspection, the division believes that an employer has violated Section 25910 of the Health and Safety Code or Code, any standard, rule, order, or regulation established pursuant to Chapter 6 (commencing with Section 140) of Division 1 of the Labor Code, any provision of this division, or any standard, rule, order, or regulation established pursuant to this part, division, it shall with reasonable promptness issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the code, standard, rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the alleged violation. The period specified for abatement shall not commence running until the date the citation or notice is received by certified mail and the certified mail receipt is signed, or if not signed, the date the return is made to the post office. If the division officially and directly delivers the citation or notice to the employer, the period specified for abatement shall commence running on the date of the delivery.
There shall be a rebuttable presumption that a written policy or procedure of an employer with multiple worksites that violates Section 25910 of the Health and Safety Code, any standard, rule, order, or regulation established pursuant to Chapter 6 (commencing with Section 140) of Division 1, any provision of this division, or any standard, rule, order, or regulation established pursuant to this division constitutes a violation that is enterprise-wide, and the division shall issue an enterprise-wide citation requiring enterprise-wide abatement based on that written policy or procedure. The division may issue an enterprise-wide citation requiring enterprise-wide abatement based on evidence of a pattern of practices involving more than one location of the employer.
Abatement for a serious enterprise-wide citation shall not be stayed by the filing of an appeal except as set forth in this section. Upon an application accompanied by declarations and exhibits under penalty of perjury, an employer may petition the Occupational Safety and Health Appeals Board for a stay of abatement pending appeal at the time the employer files a notice of appeal. The employer shall have the burden of establishing good cause for a stay of abatement. Within 5 business days of the date of receipt of the notice of appeal and request for stay of abatement pending appeal, the division may respond to the employer’s declarations and exhibits, and the division may request an expedited hearing. Within 10 business days, the Occupational Safety and Health Appeals Board shall consider the evidence submitted by the employer and the division, and shall consider oral argument if the division requests an expedited hearing, and upon all the evidence and proceedings may grant a stay of abatement pending appeal if it finds both of the following:
(1) No employee is exposed to the unsafe or unhealthful condition.
(2) The condition is not likely to cause death, serious injury or illness, or serious exposure to an employee.
A “notice” in lieu of citation may be issued with respect to violations found in an inspection or investigation which meet either of the following requirements:
(1) The violations do not have a direct relationship upon the health or safety of an employee.
(2) The violations do not have an immediate relationship to the health or safety of an employee, and are of a general or regulatory nature. A notice in lieu of a citation may be issued only if the employer agrees to correct the violations within a reasonable time, as specified by the division, and agrees not to appeal the finding of the division that the violations exist. A notice issued pursuant to this paragraph shall have the same effect as a citation for purposes of establishing repeat violations or a failure to abate. Every notice shall clearly state the abatement period specified by the division, that the notice may not be appealed, and that the notice has the same effect as a citation for purposes of establishing a repeated violation or a failure to abate. The employer shall indicate agreement to the provisions and conditions of the notice by his or her their signature on the notice.
A notice shall not be issued in lieu of a citation if the violations are serious, repeated, willful, or arise from a failure to abate.
The director shall prescribe guidelines for the issuance of these notices.
The division may impose a civil penalty against an employer as specified in Chapter 4 (commencing with Section 6423) of this part. A notice in lieu of a citation may not be issued if the number of first instance violations found in the inspection (other than serious, willful, or repeated violations) is 10 or more violations.
A citation or notice shall not be issued by the division more than six months after the occurrence of the violation. For purposes of issuing a citation or notice for a violation of subdivision (b) or (c) of Section 6410, including any implementing related regulations, an “occurrence” continues until it is corrected, or the division discovers the violation, or the duty to comply with the violated requirement ceases to exist. Nothing in this paragraph is intended to alter the meaning of the term “occurrence” for violations of health and safety standards other than the recordkeeping requirements set forth in subdivision (b) or (c) of Section 6410, including any implementing related regulations.
The director shall prescribe procedures for the issuance of a citation or notice.
The division shall prepare and maintain records capable of supplying an inspector with previous citations and notices issued to an employer.

SECTION 1.SEC. 2.

 Section 6317.8 is added to the Labor Code, to read:

6317.8.
 (a) Notwithstanding any other law, if, upon inspection or investigation, the division believes that an egregious employer has willfully violated an occupational safety or health standard, order, special order, or regulation, the division, with reasonable promptness, shall issue a citation to an egregious employer 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.
(b) For the purposes of this section, an “egregious employer” is an employer that has demonstrated one or more of the following characteristics:
(1) The employer, intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the known violation.
(2) The violations resulted in worker fatalities, a worksite catastrophe, or a large number of injuries or illnesses.
(3) The violations resulted in persistently high rates of worker injuries or illnesses.
(4) The employer has an extensive history of prior violations of this part.
(5) The employer has intentionally disregarded their health and safety responsibilities.
(6) The employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of their duties under this part.
(7) 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.
(c) For the purposes of this section, a “related employer entity” is an employer with which an employer has a direct business relationship, and with which the employer shares a reliance at least in part on their respective policies, advice, or consultation for compliance with occupational safety and health standards or regulations, implementation of safety and health programs or policies, or other employer actions involving working conditions with a direct relationship to occupational safety and health, including, but not limited to, employee wages, assignments, supervision, discipline, and termination. “Related employer entities” includes parent corporate entities, subsidiaries, affiliates, providers of labor services, franchisees, and licensees.

SEC. 2.Section 6317.10 is added to the Labor Code, to read:
6317.10.

The division may issue to an employer with separate places of employment a citation, seek a temporary restraining order against such an employer, or both issue a citation and seek an order, with regard to an employer-wide written policy or practice that violates the Health and Safety Code or this code. The appeals board may issue an order of abatement for the employerwide written policy or practice. There shall be a rebuttable presumption that a written employer policy or practice that violates the Health and Safety Code or this code exists at all places of employment of the employer and citations may be issued accordingly.

SEC. 3.

 Section 6317.9 is added to the Labor Code, to read:

6317.9.
 (a) Notwithstanding any other law, if, upon inspection or investigation, the division believes that the employer has committed multiple violations of occupational safety or health standards, orders, special orders, or regulations having the same classification, the division shall, with reasonable promptness, issue a citation to the employer. The division shall note each violation on the citation.
(b) If, upon inspection or investigation, the division believes that the employer has committed multiple interrelated violations of different occupational safety or health standards, orders, special orders, or regulations, the division may, with reasonable promptness, issue a citation that groups the violations into a single violation.
(c) Subdivisions (a) and (b) do not apply under any of the following circumstances:
(1) The violations are discovered during separate inspections of the same place of employment or worksite.
(2) The violations occur at separate places of employment or worksites of the same employer.
(3) The violations occur at the place of employment or worksite of an egregious employer, as defined in Section 6317.8.
(d) In the investigation of the policies and practices of the employer or a related employer entity, the division shall issue a subpoena if the employer or the related employer entity fails to promptly provide the requested information, and shall enforce the subpoena if the employer or the related employer entity fails to provide the requested information within a reasonable period of time.

SEC. 4.

 Section 6323 of the Labor Code is amended to read:

6323.
 If the division has grounds to issue a citation pursuant to Section 6317, or if the condition of any employment or place of employment or the operation of any machine, device, apparatus, or equipment constitutes a serious menace to the lives or safety of persons about it, the division may apply to the superior court of the county in which such place of employment, machine, device, apparatus, or equipment is situated, for an injunction restraining the use or operation thereof until such condition is corrected.

SEC. 5.

 Section 6324 of the Labor Code is amended to read:

6324.
 The application to the superior court accompanied by affidavit showing that such the division has grounds to issue a citation pursuant to Section 6317 or a place of employment, machine, device, apparatus, or equipment is being operated in violation of a safety order or standard, or in violation of Section 25910 of the Health and Safety Code, or in violation of a provision of this division and that such the use or operation constitutes a menace to the life or safety of any person employed thereabout and accompanied by a copy of the order statute, order, or standard applicable thereto is a sufficient prima facie showing to warrant, in the discretion of the court, the immediate granting of a temporary restraining order. No A bond shall not be required from the division as a prerequisite to the granting of any restraining order.

SEC. 3.SEC. 6.

 Section 6409.7 is added to the Labor Code, to read:

6409.7.
 There shall be a rebuttable presumption that an employer’s action was retaliatory if an employer takes any adverse action against an employee within 90 days of an employee doing any of the following:
(a) Disclosing a positive test or diagnosis of COVID-19 resulting from an exposure at the place of employment or worksite or of a communicable disease. worksite.
(b) Requesting testing for COVID-19 as a result of an exposure at the place of employment or worksite.
(c) Requesting personal protective equipment that is reasonable under the circumstances.
(d) Reporting a possible violation of an occupational safety or health standard, order, special order, or regulation.

SEC. 7.

 Section 6427 of the Labor Code is amended to read:

6427.
 (a) Any employer who violates any occupational safety or health standard, order, or special order, or Section 25910 of the Health and Safety Code, or any provision of this division, and the violation is specifically determined not to be of a serious nature, may be assessed a civil penalty of up to twelve thousand four hundred seventy-one dollars ($12,471) for each violation.
(b) Commencing on January 1, 2018, and each January 1 thereafter, the maximum penalty amount specified in this section shall be increased based on the percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U), not seasonally adjusted, for the month of October immediately preceding the date of the adjustment, as compared to the prior year’s October CPI-U. Any regulation issued pursuant to this section increasing penalty amounts based on the annual increase in the CPI-U shall be exempt from the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), except that the regulation shall be filed with the Office of Administrative Law for publication in the California Code of Regulations. Any penalty shall be calculated using the penalty amounts in effect during the calendar year in which the citation was issued.

SEC. 8.

 Section 6428 of the Labor Code is amended to read:

6428.
 Any employer who violates any occupational safety or health standard, order, or special order, or Section 25910 of the Health and Safety Code, or any provision of this division, if that violation is a serious violation, shall be assessed a civil penalty of up to twenty-five thousand dollars ($25,000) for each violation. Employers who do not have an operative injury prevention program shall receive no adjustment for good faith of the employer or history of previous violations as provided in paragraphs (3) and (4) of subdivision (c) of Section 6319.

SEC. 9.

 Section 6429 of the Labor Code is amended to read:

6429.
 (a) (1) Any employer who willfully or repeatedly violates any occupational safety or health standard, order, or special order, or Section 25910 of the Health and Safety Code, or provision of this division, or any employer who commits an enterprise-wide violation as specified in Section 6317, may be assessed a civil penalty of not more than one hundred twenty-four thousand seven hundred nine dollars ($124,709) for each violation, but in no case less than eight thousand nine hundred eight dollars ($8,908) for each willful violation.
(2) Commencing on January 1, 2018, and each January 1 thereafter, the penalty amounts specified in this section shall be increased based on the percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U), not seasonally adjusted, for the month of October immediately preceding the date of the adjustment, as compared to the prior year’s October CPI-U. Any regulation issued pursuant to this section increasing penalty amounts based on the annual increase in the CPI-U shall be exempt from the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code), except that the regulation shall be filed with the Office of Administrative Law for publication in the California Code of Regulations. Any penalty shall be calculated using the penalty amounts in effect during the calendar year in which the citation was issued.
(b) Any employer who repeatedly violates any occupational safety or health standard, order, or special order, or Section 25910 of the Health and Safety Code, shall not receive any adjustment of a penalty assessed pursuant to this section on the basis of the regulations promulgated pursuant to subdivision (c) of Section 6319 pertaining to the good faith of the employer or the history of previous violations of the employer.
(c) The division shall preserve and maintain records of its investigations and inspections and citations for a period of not less than seven years.

SEC. 10.

 Section 6430 of the Labor Code is amended to read:

6430.
 (a) Any employer who fails to correct a violation of any occupational safety or health standard, order, or special order, or Section 25910 of the Health and Safety Code, or any provision of this division, within the period permitted for its correction shall be assessed a civil penalty of not more than fifteen thousand dollars ($15,000) for each day during which the failure or violation continues.
(b) Notwithstanding subdivision (a), for any employer who submits a signed statement affirming compliance with the abatement terms pursuant to Section 6320, and is found upon a reinspection not to have abated the violation, any adjustment to the civil penalty based on abatement shall be rescinded and the additional civil penalty assessed for failure to abate shall not be adjusted for good faith of the employer or history of previous violations as provided in paragraphs (3) and (4) of subdivision (c) of Section 6319.
(c) Notwithstanding subdivision (a), any employer who submits a signed statement affirming compliance with the abatement terms pursuant to subdivision (b) of Section 6320, and is found not to have abated the violation, is guilty of a public offense punishable by imprisonment in a county jail for a term not exceeding one year, or by a fine not exceeding thirty thousand dollars ($30,000), or by both that fine and imprisonment; but if the defendant is a corporation or a limited liability company the fine shall not exceed three hundred thousand dollars ($300,000). In determining the amount of the fine to be imposed under this section, the court shall consider all relevant circumstances, including, but not limited to, the nature, circumstance, extent, and gravity of the violation, any prior history of violations by the defendant, the ability of the defendant to pay, and any other matters the court determines the interests of justice require. Nothing in this section shall be construed to prevent prosecution under any law that may apply.

SEC. 11.

 Section 6602 of the Labor Code is amended to read:

6602.
 If an employer notifies the appeals board that he or she intends they intend to contest a citation issued under Section 6317, or notice of proposed penalty issued under Section 6319, or order issued under Section 6308, or if, within 15 working days of the issuance of a citation or order any an employee or representative of an employee files a notice with the division or appeals board alleging that the period of time fixed in the citation or order for the abatement of the violation is unreasonable, the appeals board shall afford an opportunity for a hearing. The appeals board shall thereafter issue a decision, based on findings of fact, affirming, modifying modifying, or vacating the division’s citation, order, or proposed penalty, or directing other appropriate relief. If the division establishes an enterprise-wide violation, the appeals board shall include in its decision an enterprise-wide abatement order.