BILL NUMBER: AB 2774	ENROLLED
	BILL TEXT

	PASSED THE SENATE  AUGUST 24, 2010
	PASSED THE ASSEMBLY  AUGUST 26, 2010
	AMENDED IN SENATE  AUGUST 19, 2010
	AMENDED IN SENATE  AUGUST 10, 2010
	AMENDED IN ASSEMBLY  MAY 28, 2010
	AMENDED IN ASSEMBLY  APRIL 14, 2010
	AMENDED IN ASSEMBLY  APRIL 8, 2010

INTRODUCED BY   Assembly Member Swanson

                        MARCH 1, 2010

   An act to repeal and add Section 6432 of the Labor Code, relating
to employment.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2774, Swanson. Occupational safety and health.
   Existing law requires an employer to provide employees with a safe
workplace and authorizes the 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."
   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.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 6432 of the Labor Code is repealed.
  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 consist of, among other things:
   (1) A serious exposure exceeding an established permissible
exposure limit.
   (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
hazard.
   (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
subdivision (a).
   (iv) Any other information that the employer wishes to provide.
   (2) The division shall satisfy its requirement to 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 the
alleged violation descriptions ("AVD") it intends to cite as serious
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
the following:
   (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, but are not limited to, those
listed in subdivision (b).
   (2) The employer took effective action to eliminate employee
exposure to the hazard created by the 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 subdivision (b), 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 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 subdivision (b), 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
observation.
   (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, but not limited to,
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, at the time of the hearing, that his or her
division-mandated training is current shall be deemed competent to
offer 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 violation.