Repeat Violations Redefined by Cal/OSHA
A violation of the Cal/OSHA safety orders was classified as a “repeat” when the employer had been previously cited for the same violation, had corrected the unsafe condition and upon a subsequent inspection the same violation was found. The rules that define a “repeat” can be found in Section 334(d). Although it sounds straight-forward, it really isn’t. Making matters worse, a “repeat” violation is defined differently by Federal OSHA and therefore, Cal/OSHA made a change to its definition which becomes effective on January 1, 2017.
Simply put, federal OSHA defines a Repeat violation when an employer has previously been cited for the same or “similar” violation of a standard at any work site in a federal enforcement state within the last five years. In contrast, Cal/OSHA previously defined a Repeat violation when an employer violated the same standard within three years and both violations occurred at the same work site or within the same geographic region of Cal/OSHA. This definition was particularly interesting for the Construction Industry. A contractor would only receive a Repeat violation if the violation was found on a job site in the same Cal/OSHA region. For example, assume a contractor had two job sites; one in San Francisco and one in Los Angeles. Also assume the contractor was cited in San Francisco. If Cal/OSHA found this same violation at their Los Angeles job site a year later (meeting the three year threshold), this second violation would not be classified as a Repeat since the two job sites are not in the same Cal/OSHA region. This would not be the case for a fixed workplace. Also not clear in the previous Cal/OSHA definition was when the clock starts for calculating the three year look-back period, since significant time can elapse between being issued a citation and the time when the citation is finalized, or when the condition would be abated, or even when an Appeal was filed and a decision finalized; all of which could enter into the three year period.
The amendment to Section 334(d) was finalized in September 2016 and now states that a violation is defined as a violation when the employer “has abated or indicated abatement of an earlier violation” occurring “within the state” of a “violation of a substantially similar regulatory requirement” and within “five years” of receipt of the citation. So, a Repeat violation no longer must be of the same violation, but only one that is of “essentially similar conditions or hazards.” The repeat is no longer limited to a Cal/OSHA region, but now can be anywhere in the state. So, using my example above of the two construction sites, the Los Angeles job site would receive a Repeat violation under these new rules. Lastly, the look-back period is now five years and not three years, making the timetable consistent with federal OSHA. The factors that define five years also are included in the amended subsection and are not described in this article. Lastly, differences in handling the Construction industry and the fixed establishments have been removed. Requirements for field sanitation issues would also fall under this new definition of Repeat.
Admittedly, this may be confusing, but what should be clear is that if you receive a citation at one of your workplaces, be sure the same or similar condition does not exist at any other location. Fines for Repeat violations can be substantial (see Section 336 for penalties). Generally speaking, a Regulatory, General, or Serious violation that is repeated starts at twice the normal proposed penalty for a first repeat offense, and can be as much as $70,000. We suggest you share your findings from your internal site inspections with all of your locations and certainly, share your experiences regarding any Cal/OSHA inspection.