BILL ANALYSIS                                                                                                                                                                                                    




                                                                  AB 2774
                                                                  Page A

          ASSEMBLY THIRD READING
          AB 2774 (Labor Committee)
          As Amended  April 14, 2010
          Majority vote 

           LABOR & EMPLOYMENT     4-0                                      
           
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          |Ayes:|Swanson, Furutani,        |     |                          |
          |     |Monning, Yamada           |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |     |                          |     |                          |
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           SUMMARY  :  Codifies a definition for "serious physical harm" in  
          the statute governing occupational safety and health.   
          Specifically,  this bill  :

          1 Defines "serious physical harm" as any injury or illness,  
            specific or cumulative, occurring in the place of employment  
            or in connection with any employment, which is the consequence  
            of a condition, practice, means, method, operation or process  
            that meets any of the following:

             a)   Requires inpatient hospitalization for a period in  
               excess of 24 hours for other than medical observation;

             b)   Causes an employee to suffer the loss of any member of  
               the body;

             c)   Causes an employee to suffer any serious degree of  
               permanent disfigurement; or,

             d)   Could reasonably lead to impairment of a part of the  
               body by substantially reducing its efficiency on or off the  
               job for more than 24 hours.

          2)Specifies that a single condition, practice, means, method,  
            operation or process can be properly classified as resulting  
            in "serious physical harm."

           EXISTING LAW  :

          1 Provides that a "serious violation" of occupational safety and  
            health law shall be deemed to exist in a place of employment  









                                                                  AB 2774
                                                                  Page B

            if there is a substantial probability that death or "serious  
            physical harm" could result from a violation.

          2)Does not contain a statutory definition for "serious physical  
            harm."

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   This bill attempts to address an issue of  
          significant concern that has been raised by, among others,  
          worker advocates, the Division of Occupational Safety and Health  
          (DOSH), and the federal Occupational Safety and Health  
          Administration (OSHA): how "serious violations" are defined and  
          cited under California law.

          Supporters note that California's rate of serious citations is  
          currently the lowest in the country.  Moreover, California is  
          likely out of compliance with the Federal OSHA program.  In  
          January, 2010, Federal OSHA informed both DOSH and the Appeals  
          Board that it was conducting a Special Study of the state  
          program.  While Federal OSHA has not yet issued its findings,  
          the letters indicated the state plan was likely not as effective  
          as the Federal OSHA program with respect to the definition of  
          "serious physical harm."

          Supporters contend that this bill defines "serious physical  
          harm" to comport with Federal OSHA law and existing California  
          law.  The legislation closely tracks the definition of "serious  
          physical harm" in the Federal OSHA Field Operation Manual and  
          closely tracks current settled California law as set first forth  
          in a 1985 Appeals Board case, Abatti Farms/Produce.

          Finally, supporters conclude that California's occupational  
          safety and health program has been the best in the country in  
          many regards for years.  California cannot and should not risk  
          jeopardizing the entire program because one aspect is out of  
          compliance, particularly when this aspect of the problem may be  
          promptly and effectively addressed through legislation.  This  
          bill is a crucial tool in the effort to improve Cal/OSHA's  
          ability to reach the worst offenders and to level the playing  
          field for legitimate law-abiding businesses.  Supporters state  
          that this bill would benefit those employers that play by the  
          rules by enabling Cal/OSHA more effectively to prosecute those  
          employers that gain an economic advantage from not protecting  









                                                                  AB 2774
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          their employees' safety and health.

          A coalition of employer groups, including the California Chamber  
          of Commerce, oppose this bill unless amended, arguing that this  
          overly expansive definition will lead to an increase in  
          citations classified as serious that are now and should continue  
          to be classified as general.   A serious citation carries  
          significant financial implications so should therefore only be  
          issued where warranted. 

          Opponents contend that this new definition will encourage  
          employer appeals because an employer's citation record is  
          considered in most competitive bidding situations.  Employers  
          routinely appeal serious citations which they believe are  
          unwarranted.  A significant increase in the number of serious  
          citations issued is likely to create a significant increase in  
          appeals to those citations.  The current Appeals Board resources  
          cannot timely adjudicate an increase in appeals that is likely  
          from this expansive change to the serious violation definition. 

          However, opponents do state that they appreciate the discussions  
          that they have had with author's staff and sponsors of the bill.  
           The employer coalition has submitted amendments to the bill for  
          consideration and will continue to participate in good faith  
          discussions.

           
          Analysis Prepared by  :    Ben Ebbink / L. & E. / (916) 319-2091


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