Cal-OSHA will create two new violation categories – “enterprise-wide” and “egregious.”

Effective January 1, 2022, Senate Bill (SB) 606 expands the enforcement authority of the California Division of Occupational Safety and Health (Cal-OSHA) by creating two new violations categories for which Cal-OSHA can issue citations — “enterprise-wide” and “egregious” violations.

SB 606 creates a rebuttable presumption that employers with multiple worksites have made “enterprise-wide” workplace safety violations if either of the following are true:

  1. The employer has a written policy or procedure that violates any of the following:
  • Health and Safety Code section 25910 (governing the use of asbestos),
  • Any standard, rule, order, or regulation established by the Occupational Safety and Health Standards Board, or
  • Any standard, rule, order, or regulation established pursuant to the California Occupational Safety and Health Act of 1973; or
  1. Cal-OSHA has evidence of a pattern or practice of the same violations involving more than one of the employer’s worksites.

SB 606 also establishes an “egregious violation,” if Cal-OSHA finds at least of one of seven criteria are true:

  • An intentional failure to eliminate a known violation,
  • Violations causing worker fatalities or a workplace catastrophe resulting in inpatient hospitalization having three or more workers,
  • High injury and illness rates among workers,
  • An extensive history of violations,
  • An intentional disregard for health and safety responsibilities,
  • An employer’s clear bad faith in performance of their duties, or
  • Committing a large number of violations that undermines the effectiveness of its safety and health program.

The law sets the maximum penalty for an enterprise-wide violation or a willful or repeated violation of occupational safety or health standards at $124,709.00 per violation.

Cal-OSHA rules require compliance with specific rules when employees use N95 masks. The COVID-19 pandemic has introduced the use of masks into many workplaces that traditionally never needed, or required, them. The pandemic has also raised public awareness of one type of mask in particular, the N95 mask. But what many employers may not realize is that the N95 mask is considered a respiratory device that falls under Cal-OSHA’s respirator protection protocols. This means that employers must comply with Cal-OSHA respiratory protection protocols whenever an N95 mask is used in the workplace, even if that use is voluntary.

Mandatory use of N95 masks.  If the use of N95 masks is mandatory in a particular workplace, then the employer must provide employees with the required respiratory protection. The employer must also follow all of the applicable requirements in the California Code of Regulations (C.C.R.)  § 5144. These requirements include:

  • Having a written respiratory protection program that addresses proper selection of respiratory equipment and required worksite-specific procedures and elements for required respirator use;
  • Providing a medical evaluation of an employee’s ability to use a respirator, including an N95;
  • Requiring employees to undertake a fit test to ensure a proper fit of the respirator (including an N95) as to each employee;
  • Establish and implement procedures for the proper use of respirators;
  • Providing for the cleaning and disinfecting, storage, inspection, and repair of respirators;
  • Providing employees with training and information regarding the use of the respirator; and
  • Maintain written information regarding medical evaluations, fit testing, and the respirator program.

Voluntary use of N95 masks.  Where respirator use in the workplace is voluntary, the employer may permit employees to use their own N95 mask or provide the N95 mask to employees. In such voluntary situations, employers are not required to undertake all of the above elements required for mandatory respirator use. For instance, employers need not medically evaluate and fit test employees who voluntarily wear an N95 or other respirator. However, employers must still follow the requirements contained in C.C.R. § 5144 (c)(2). Under this subsection, the employer must ensure that an employee’s use of a respirator will not create a hazard and must provide employees with the information contained in C.C.R. § 5144, Appendix D. Appendix D is a brief written statement reminding respirator users, including those using an N95 mask, to heed instructions for the proper use of the respirator, choose certified respirators, wear the appropriate respirator to protect what it is designed to protect against, and refrain from using another’s respirator. This subsection also requires that the employer establish and implement those elements of a written respiratory protection program necessary to ensure that any employee voluntarily using a respirator is medically able to use that respirator, and that the respirator is cleaned, stored, and maintained so that its use does not present a health hazard to the user. However, employers are not required to provide a written respiratory protection program for employees whose only use of respirators involves the voluntary use of filtering facepieces (e.g., dust masks).