Employers Lose OSHA Due Process Rights and Face Fast Tracked Serious Covid-19 Citations Under Assembly Bill 685
California Assembly Bill 685 (Chapter 84, Statutes of 2020) is a California law signed by Governor Gavin Newsom on September 17, 2020 that amends the California Labor Code 6432 and California Occupational Safety and Health Act of 1973 (OSHA) to (among other things like create new burdens on Employers to notify employees about positive Covid-19 cases in the workplace) authorize Cal OSHA to issue Serious citations for alleged violations of Covid-19 mitigation standards without having to give Employers notice or an opportunity to first rebut the allegations. (Labor Code 6432(a)(2)(c).) Styled as a tool necessary to address the "imminent threat" presented by Covid-19, AB 685 green lights the issuance by Cal OSHA Serious citations for Covid-19 related hazards without the due process previously offered to Employers. Prior to AB 685, Cal OSHA was required to send Employers a form (1BY) explaining the potential Serious allegations under investigation and giving the Employer 15 days to provide information in rebuttal.
AB 685 eliminates Cal OSHA's obligation to solicit rebuttal information from an Employer before issuing a Serious citation associated with Covid-19 through January 1, 2023. This is significant because Cal OSHA was required to meaningfully consider evidence submitted by the Employer about whether the Employer knew and could not, with the exercise of reasonable diligence, have known of the presence of the violation. Previously, Employers had 15 days to submit rebuttal evidence to Cal OSHA outlining their measures in place to reduce or eliminate the exposure or risk. Objectively meritorious submissions, if accepted by Cal OSHA, resulted in Employers receiving a lesser ("General") violation or, on rare occasions, no citations at all.
The opportunity to stave off a Serious violation before it is ever issued is gone. Cal OSHA is no longer required to "reasonably consider" mitigating evidence from an Employer before issuing Serious citations for things like failure to implement a Covid-19 Prevention Plan, failure to effectively implement an IIPP and failure to identify and provide PPE to prevent transmission. Employers with affirmative defenses and responsible measures in place, and who don't want to accept a Serious violation (and higher penalty), have no option now but to appeal the Serious citation to the OSHA Appeals Board to plead their case and potentially unwind the Serious classification.
At Kienle Law, we have been judicious in recommending whether or not an Employer should respond to the pre-citation 1BY letter, because facts and defenses may be "under construction" at that early stage and there is some risk to submitting a narrative to Cal OSHA so early. However, clients with robust and verifiable defenses to the proposed Serious violation have been spared issuance of the Serious violation when given the opportunity to meaningfully respond to Cal OSHA's solicitation for rebuttal information. AB 685 forces Cal OSHA's hand, as the Division will undoubtedly respond by taking a "just issue the citation" approach, knowing the Employer will have to appeal and defend later. Employers should expect an uptick in investigations and Covid-19 citations from Cal OSHA, and unfortunately, more citations classified as "Serious" that ultimately are defensible. While one can imagine imminent hazards in industries or employment settings with chronic and documented outbreaks that might justify the fast tracking of Serious citations, the vast majority of California employment environments are operated without "Serious" violations. AB 685 prejudices Employers by eliminating a way to potentially avoid the cost and resource drain of an appeal, while encouraging the investigation and prosecution of Serious Covid-19 violations by an already strained OSHA enforcement and legal work force.
Jenifer Kienle, Esq.