BILL NUMBER: AB 2774 AMENDED
AMENDED IN SENATE AUGUST 10, 2010
AMENDED IN ASSEMBLY MAY 28, 2010
AMENDED IN ASSEMBLY APRIL 14, 2010
AMENDED IN ASSEMBLY APRIL 8, 2010
Committee on Labor and Employment
( Swanson (Chair), Furutani, Monning, and
Yamada ) Assembly Member
MARCH 1, 2010
An act to amend Section 6302 repeal and
add Section 6432 of the Labor Code, relating to employment.
LEGISLATIVE COUNSEL'S DIGEST
AB 2774, as amended, Committee on Labor and Employment
Swanson . Occupational safety and health.
Existing law requires an employer to provide employees with a
safe workplace and authorizes the Department
Division of Occupational Safety and Health
within the Department of Industrial Relations to enforce health
and safety standards in places of employment and to investigate and
to issue a citation and impose civil penalties when an
employer commits a serious violation that causes an
employee to suffer or potentially suffer, among other things,
"serious injury or illness" or "serious physical harm."
Existing law defines a "serious injury or illness," generally, as a
workplace injury or illness requiring hospitalization of more than 24
hours or resulting in the loss of a body member or in permanent
This bill would define "serious physical harm" to include most
categories of a "serious injury or illness," but would also include
those resulting in physical impairment of a part of the body or from
a single cause or from the cumulative effect of multiple injuries or
This bill would establish a rebuttable presumption as to when an
employer commits a serious violation of these provisions and would
define serious physical harm, as specified. The bill would also
establish new procedures and standards for an investigation and the
determination by the division of a serious violation by an employer
which causes harm or exposes an employee to the risk of harm.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6432 of the Labor
Code is repealed.
6432. (a) As used in this part, a "serious violation" shall be
deemed to exist in a place of employment if there is a substantial
probability that death or serious physical harm could result from a
violation, including, but not limited to, circumstances where there
is a substantial probability that either of the following could
result in death or great bodily injury:
(1) A serious exposure exceeding an established permissible
(2) The existence of one or more practices, means, methods,
operations, or processes which have been adopted or are in use, in
the place of employment.
(b) Notwithstanding subdivision (a), a serious violation shall not
be deemed to exist if the employer can demonstrate that it did not,
and could not with the exercise of reasonable diligence, know of the
presence of the violation.
(c) As used in this section, "substantial probability" refers not
to the probability that an accident or exposure will occur as a
result of the violation, but rather to the probability that death or
serious physical harm will result assuming an accident or exposure
occurs as a result of the violation.
SEC. 2. Section 6432 is added to the
Labor Code , to read:
6432. (a) There shall be a rebuttable presumption that a "serious
violation" exists in a place of employment if the division
demonstrates that there is a realistic possibility that death or
serious physical harm could result from the actual hazard created by
the violation. The demonstration of a violation by the division is
not sufficient by itself to establish that the violation is serious.
The actual hazard may be either of the following:
(1) A serious exposure exceeding an established permissible
(2) The existence in the place of employment of one or more unsafe
or unhealthful practices, means, methods, operations, or processes
that have been adopted or are in use.
(b) (1) Before issuing a citation alleging that a violation is
serious, the division shall make a reasonable attempt to determine
and consider, among other things, all of the following:
(A) Training for employees and supervisors relevant to preventing
employee exposure to the hazard or to similar hazards.
(B) Procedures for discovering, controlling access to, and
correcting the hazard or similar hazards.
(C) Supervision of employees exposed or potentially exposed to the
(D) Procedures for communicating to employees about the employer's
health and safety rules and programs.
(E) Information that the employer wishes to provide, at any time
before citations are issued, including, any of the following:
(i) The employer's explanation of the circumstances surrounding
the alleged violative events.
(ii) Why the employer believes a serious violation does not exist.
(iii) Why the employer believes its actions related to the alleged
violative events were reasonable and responsible so as to rebut,
pursuant to subdivision (c), any presumption established pursuant to
(iv) Any other information that the employer wishes to provide.
(2) The division shall determine and consider the facts specified
in paragraph (1) if, not less than 15 days prior to issuing a
citation for a serious violation, the division delivers to the
employer a standardized form containing descriptions of the alleged
violations and clearly soliciting the information specified in this
subdivision. The director shall prescribe the form for the alleged
violation descriptions and solicitation of information. Any forms
issued pursuant to this section shall be exempt from the rulemaking
provisions of the Administrative Procedure Act (Chapter 3.5
(commencing with Section 11340) of Part 1 of Division 3 of Title 2 of
the Government Code).
(c) If the division establishes a presumption pursuant to
subdivision (a) that a violation is serious, the employer may rebut
the presumption and establish that a violation is not serious by
demonstrating that the employer did not know and could not, with the
exercise of reasonable diligence, have known of the presence of the
violation. The employer may accomplish this by demonstrating both of
(1) The employer took all the steps a reasonable and responsible
employer in like circumstances should be expected to take, before the
violation occurred, to anticipate and prevent the violation, taking
into consideration the severity of the harm that could be expected to
occur and the likelihood of that harm occurring in connection with
the work activity during which the violation occurred. Factors
relevant to this determination include those listed in subdivision
(2) The employer took effective action to eliminate employee
exposure to any hazard created by a violation as soon as the
violation was discovered.
(d) If the employer does not provide information in response to a
division inquiry made pursuant to subdivisions (b) and (c), the
employer shall not be barred from presenting that information at the
hearing and no negative inference shall be drawn. The employer may
offer different information at the hearing than what was provided to
the division and may explain any inconsistency, but the trier of fact
may draw a negative inference from the prior out-of-court
inconsistent factual information. The trier of fact may also draw a
negative inference from factual information offered at the hearing by
the division that is inconsistent with factual information provided
to the employer pursuant to subdivisions (b) and (c), or from a
failure by the division to provide the form setting forth the
descriptions of the alleged violation and soliciting information
pursuant to subdivision (b).
(e) "Serious physical harm," as used in this part, means any
injury or illness, specific or cumulative, occurring in the place of
employment or in connection with any employment, that results in any
of the following:
(1) Inpatient hospitalization for purposes other than medical
(2) The loss of any member of the body.
(3) Any serious degree of permanent disfigurement.
(4) Impairment sufficient to cause a part of the body or the
function of an organ to become permanently and significantly reduced
in efficiency on or off the job, including, depending on the
severity, second-degree or worse burns, crushing injuries including
internal injuries even though skin surface may be intact, respiratory
illnesses, or broken bones.
(f) Serious physical harm may be caused by a single, repetitive
practice, means, method, operation, or process.
(g) A division safety engineer or industrial hygienist who can
demonstrate that his or her division-mandated training is current
shall be deemed competent to offer credible testimony to establish
each element of a serious violation, and may offer evidence on the
custom and practice of injury and illness prevention in the workplace
that is relevant to the issue of whether the violation is a serious
SECTION 1. Section 6302 of the Labor Code is
amended to read:
6302. As used in this division:
(a) "Director" means the Director of Industrial Relations.
(b) "Department" means the Department of Industrial Relations.
(c) "Insurer" includes the State Compensation Insurance Fund and
any private company, corporation, mutual association, and reciprocal
or interinsurance exchange, authorized under the laws of this state
to insure employers against liability for compensation under this
part and under Division 4 (commencing with Section 3201), and any
employer to whom a certificate of consent to self-insure has been
(d) "Division" means the Division of Occupational Safety and
(e) "Standards board" means the Occupational Safety and Health
Standards Board, within the department.
(f) "Appeals board" means the Occupational Safety and Health
Appeals Board, within the department.
(g) "Aquaculture" means a form of agriculture as defined in
Section 17 of the Fish and Game Code.
(h) "Serious injury or illness" means any injury or illness
occurring in a place of employment or in connection with any
employment which requires inpatient hospitalization for a period in
excess of 24 hours for other than medical observation or in which an
employee suffers a loss of any member of the body or suffers any
serious degree of permanent disfigurement, but does not include any
injury or illness or death caused by the commission of a Penal Code
violation, except the violation of Section 385 of the Penal Code, or
an accident on a public street or highway.
(i) "Serious exposure" means any exposure of an employee to a
hazardous substance when the exposure occurs as a result of an
incident, accident, emergency, or exposure over time and is in a
degree or amount sufficient to create a substantial probability that
death or serious physical harm in the future could result from the
(j) (1) "Serious physical harm" means any injury or illness,
specific or cumulative, occurring in the place of employment or in
connection with any employment, which results in any of the
(A) Inpatient hospitalization for a period in excess of 24 hours
for other than medical observation.
(B) The loss of any member of the body.
(C) Any serious degree of permanent disfigurement.
(D) Impairment of the body in which part of the body is made
functionally useless or is substantially reduced in efficiency on or
off the job for more than 72 hours.
(E) A serious illness or impairment of the function of an organ,
such as the heart, lungs, liver, skin, and nervous system, that
substantially reduces efficiency on or off the job. An illness or
impairment of this type would usually require treatment beyond first
aid by a medical doctor or other licensed health care professional.
(2) "Serious physical harm" may be caused by a single, repetitive
practice, means, method, operation, or process.