By Benjamin D. Briggs, Brent I. ClarkJoshua M. Henderson, and Craig B. Simonsen

Seyfarth Synopsis: Cal/OSHA has recently amended its definition of “repeat” for inspcetion citations to reconcile differences from the Federal OSHA program. The updated rules expand potential liability to California employers.

In August 2015 Cal/OSHA published a Notice of Proposed Rulemaking regarding Repeat citations. The purpose of the amendment was to make California’s “Repeat” violation classification more consistent with Federal enforcement standards by eliminating the “current geographic restrictions” for issuing a “Repeat” citation, and recalculating the starting time for calculating the look back period for a “Repeat” violation. The final Repeat Regulation rule was recently adopted and will be effective on January 1, 2017.

As noted in the Cal/OSHA Final Statement of Reasons, the Director determined that at a minimum, “she must amend the look-back period from three to five years….” “The Director has determined that under Labor Code section 50.7(d), she may not reject Federal OSHA’s recommendation to eliminate establishment/geographic restrictions, because doing so would make California’s Repeat enforcement policy less effective than the federal policy, thus jeopardizing future state plan funding.”

Starting January 1, 2017, California employers will be at risk of a Repeat citation that is based on a previous final citation issued to the same employer anywhere within the State of California.

Also, Cal/OSHA will be able to base a Repeat citation on a previous citation that is many as five (5) years old. Employers should examine their citation history and understand how the new rules may impact their risk of Repeat citations.

The revised rules, which become effective January 1, 2017, clearly increase the risk of Repeat citations and the higher penalties that come with such citations.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.