Cal/OSHA Expands Its Definition of What Constitutes a “Repeat Violation”

Cal/OSHA Expands Its Definition of What Constitutes a “Repeat Violation”

by Candice K. Rediger, Esq.

There is now even greater cause for concern when an OSHA complaint shows up on your desk. Cal/OSHA recently amended its regulations to redefine what constitutes a “repeat violation” and the new amendment takes effect on January 1, 2017. In a nutshell: A repeat violation can now be found based on a “substantially similar” violation occurring at any of the employer’s sites in California within five years of the date of the first violation.

The change is significant. Under Cal/OSHA’s current regulations, an employer commits a general repeat violation “where the employer has corrected, or indicated correction of an earlier violation, for which a citation was issued, and upon a later inspection is found to have committed the same violation again within a period of three years immediately preceding the latter violation.” (Cal. Code Regs., tit. 8, § 334, subd. (d)(1).)

Under the amended regulation, a “repeat violation” is defined as: “[A] violation where the employer has abated or indicated abatement of an earlier violation occurring within the state for which a citation was issued, and upon a later inspection, the Division finds a violation of a substantially similar regulatory requirement and issues a citation within a period of five years…” (Cal. Code Regs., tit. 8, § 334, subd. (d), eff. Jan. 1, 2017.)

Beginning in 2017, a “repeat violation” can be found at different site within California from where the original violation occurred within a five-year period instead of three years, and the violation only needs to be “substantially similar” to original violation instead of being “the same.” At present, penalties for repeat general violations (not serious or willful violations) are subject to multiplier increments based on the type of violation, not to exceed $70,000. Accordingly, if an employer receives a Cal/OSHA citation, it should immediately examine each of its California locations and promptly address any potential “substantially similar” violations elsewhere.