364 | 2023 Cal-Peculiarities ©2023 Seyfarth Shaw LLP www.seyfarth.com Cal/OSHA has published voluminous interpretive guidance on the permanent standards in the form of frequently asked questions.29 The FAQs state that they will be updated on an ongoing basis. Cal/OSHA also has a model Covid-19 Prevention Program. 14.17.2 Covid-19 Notifications and Reporting California employers must notify certain employees when there has been a Covid-19 case identified in the workplace, provide information on Covid-19-related benefits and protections, and explain the disinfection and safety measures to be taken at the worksite in response to the potential exposure. This notice can be posted in the workplace rather than sent to each affected employee.30 Employers no longer need to notify local public health agencies when there are three or more Covid-19 cases in the workplace within a two-week period.31 14.18 Beefed Up Enforcement As of January 1, 2022, Cal/OSHA’s enforcement power was dramatically enhancedvia legislation that created a rebuttable presumption that an employer with multiple worksites has committed an “enterprise-wide” violation if Cal/OSHA determines that either of the following factors “is true”:32 The employer has a non-compliant written policy or procedure. Cal/OSHA “has evidence of a pattern or practice of the same violation or violations committed by that employer involving more than one of the employer’s worksites.” This presumption will, among other things, have the effect of creating an enterprise-wide violation for any written policy and procedure violations unless an employer can show that its other worksites have different, compliant, written policies and procedures. Appeal of an enterprise-wide violation will stay abatement, but if the violation is affirmed, abatement will be required across all of the employer’s California worksites. Enterprise-wide citations will carry the same penalties as willful or repeated citations, i.e., up to $134,334 per violation. The new legislation also authorizes Cal/OSHA to seek an injunction restraining certain uses or operations of employment if it has grounds to issue a citation. This is a massive expansion of Cal/OSHA enforcement power; previously, Cal/OSHA could only seek an injunction 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.” And finally, there’s now an “egregious violation” category for citations. Cal/OSHA can issue an egregious violation if it finds that at least one of the following seven criteria “is true”: (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. “Catastrophe” means the inpatient hospitalization, regardless of duration, of three or more employees resulting from an injury, illness, or exposure caused by a workplace hazard or condition. (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.
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