BILL ANALYSIS                                                                                                                                                                                                    


          |SENATE RULES COMMITTEE            |                  AB 2774|
          |Office of Senate Floor Analyses   |                         |
          |1020 N Street, Suite 524          |                         |
          |(916) 651-1520         Fax: (916) |                         |
          |327-4478                          |                         |
                                 THIRD READING

          Bill No:  AB 2774
          Author:   Assembly Labor and Employment Committee
          Amended:  5/28/10 in Assembly
          Vote:     21

           SENATE LABOR & INDUSTRIAL RELATIONS COMM  :  4-1, 6/23/10
          AYES:  DeSaulnier, Ducheny, Leno, Yee
          NOES:  Hollingsworth
          NO VOTE RECORDED:  Wyland

           ASSEMBLY FLOOR  :  44-29, 6/2/10 - See last page for vote

           SUBJECT  :    Occupational safety and health

           SOURCE  :     Author

           DIGEST  :    This bill establishes a definition for serious  
          physical harm in the States statute governing occupational  
          safety and health.

           ANALYSIS  :    With the passage of the Occupational Safety  
          and Health Act of 1970, Congress created the Federal  
          Occupational Safety and Health Administration (Federal  
          OSHA) as part of the United States Department of Labor to  
          ensure safe and healthful working conditions for working  
          men and women by setting and enforcing standards and by  
          providing training, outreach, education and assistance.   
          The Act covers employers and their employees either  
          directly through federal OSHA or through an OSHA-approved  
          state program.  State programs must meet or exceed federal  


                                                               AB 2774

          OSHA standards for workplace safety and health.  

          Under existing law, the California Occupational Safety and  
          Health Act of 1973 was enacted to ensure safe and healthful  
          working conditions for all California workers by, among  
          other things, authorizing the enforcement of effective  
          standards as well as assisting and encouraging employers to  
          maintain safe and healthful working conditions.  The  
          Division of Occupational Safety and Health (DOSH, also  
          knows as Cal/OSHA), within the state Department of  
          Industrial Relations (DIR), is charged with enforcing  
          occupational health and safety laws, orders, and standards,  
          including the investigation of alleged violations of those  

          Existing law authorizes DOSH to issue a citation when an  
          employer causes an employee to suffer or potentially  
          suffer, among other things, "serious injury or illness" or  
          "serious physical harm."  Existing law defines:

          1.A "Serious injury or illness," generally, as a workplace  
            injury or illness requiring inpatient hospitalization for  
            a more than 24 hours or resulting in the loss of a body  
            member or in permanent disfigurement.  

          2."Serious Exposure," as 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 exposure. 

          This bill 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  
            results in any of the following:

               A.     Inpatient hospitalization for a period in  
                 excess of 24 hours for other than medical  


                                                               AB 2774

               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.Specifies that "serious physical harm" may be caused by a  
            single, repetitive practice, means, method, operation, or  

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No    
          Local:  No

           SUPPORT  :   (Verified  6/30/10)

          American Federation of State, County and Municipal  
          Bricklayers and Allied Craftworkers Local 3 of Northern  
          California Applicants' Attorneys Association
          California Labor Federation
          California Nurses Association/National Nurses Organizing  
          California Rural Legal Assistance Foundation
          East Bay Repetitive Strain Injury Support Group
          International Brotherhood of Electrical Workers Local No.  
          Kazan, McClain, Lyons, Greenwood & Harley
          National Lawyers Guild
          Plumbers and Steamfitters Local 159
          State Building and Construction Trades Council of  
          California, AFL-CIO
          United Steelworkers Local 675
          UPTE-CWA Local 9119
          Voters Injured at Work


                                                               AB 2774

           OPPOSITION  :    (Verified  6/30/10)

          Alpha Fund [oppose unless amended]
          Associated General Contractors
          Associated Roofing Contractors of the Bay Area Counties,  
          Association of California Water Agencies [oppose unless  
          California Association of Joint Powers Authorities [oppose  
          unless amended]
          California Association of Sheet Metal and Air conditioning  
          Contractors' National Association
          California Automotive Business Coalition
          California Chamber of Commerce
          California Chapter of the American Fence Association
          California Construction & Industrial Materials Association
          California Farm Bureau Federation
          California Fence Contractors Association
          California Framing Contractors Association
          California Grocers Association
          California Independent Grocers Association
          California Manufacturers and Technology Association
          California Professional Specialty Contractors Association
          California Restaurant Association
          California Small Business Association
          California Special District Association [oppose unless  
          California State Association of Counties [oppose unless  
          Construction Employers' Association
          Contractors' National Association
          CSAC Excess Insurance Authority
          Engineering Contractors Association
          Flasher/Barricade Association
          Life Technologies Corporation
          Marin Builders Association
          Public Agency Safety Management Association - PASMA 
          Residential Contractors Association
          Walter & Prince, LLP
          Western Electrical Contractors Association (WECA-IEC)
          Western Growers


                                                               AB 2774

           ARGUMENTS IN SUPPORT  :    According to the author's office,  
          current workplace health and safety law does not contain an  
          adequate definition for "serious physical harm," which  
          impacts the ability of citations against employer for  
          "serious" violations from being upheld during the appeals  
          process.  According to proponents, this bill is a necessary  
          first step to bring the California occupational safety and  
          health program into compliance with Federal OSHA law.   In  
          addition, they state that this bill will help strengthen  
          the Cal/OSHA program, improve enforcement, and result in  
          better working conditions for all California workers. 

          Proponents note that California's rate of serious citations  
          is currently the lowest in the country.  Moreover, they  
          argue, California is likely out of compliance with the  
          Federal OSHA program.  Proponents contend that this bill is  
          needed because the OSH Appeals Board is applying the wrong  
          meaning to that phrase, won't issue a regulation, and won't  
          follow a regulation that Cal/OSHA might issue.  According  
          to proponents, with no statutory definition for "serious  
          physical harm," far too many citations issued after serious  
          injuries or fatalities are reclassified as general  
          violations.  Therefore, they believe that employers who  
          should be cited and penalized appropriately for serious  
          violations are instead given a "slap on the wrist" and  
          issued a general violation citation instead.

          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  
          to more effectively prosecute those employers that gain an  
          economic advantage from not protecting their employees'  
          safety and health.

           ARGUMENTS IN OPPOSITION :    A coalition of employer groups  
          oppose this bill unless amended, arguing that this overly  


                                                               AB 2774

          expansive definition will lead to an increase in citations  
          classified as serious that are now and should continue to  
          be classified as general.  Opponents contend that a serious  
          citation carries significant financial implications and  
          should only be issued where warranted.  

          According to opponents, AB 1127 (Steinberg) of 1999  
          significantly increased penalties on employers who are  
          cited for serious citations.  They argue that prior to this  
          measure California's base penalty for a serious citation  
          was the same as Federal OSHA - $5,000.  AB 1127 increased  
          that base penalty more than three times to the highest in  
          the country at $18,000 (California Code of Regulations,  
          Title 8, 336 (c) (1)).  According to opponents, this  
          enormous increase in liability to employers significantly  
          increased the number of citation appeals, resulting in a  
          backlog that has just been cleared this year.  Because of  
          the level of penalty that is assessed against an employer  
          for a serious violation, opponents maintain that we should  
          be judicious in issuing serious citations.

          Opponents contend that this new definition will encourage  
          employer appeals because an employer's citation record is  
          considered in most competitive bidding situations.  They  
          argue that employers routinely appeal serious citations  
          which they believe are unwarranted.  Furthermore, opponents  
          maintain that a significant increase in the number of  
          serious citations issued is likely to create a significant  
          increase in appeals to those citation and they argue that  
          current Appeals Board resources cannot timely adjudicate an  
          increase in appeals.  However, opponents do state that they  
          appreciate the discussions that they have had with author's  
          staff and sponsors of the bill.   

           ASSEMBLY FLOOR  :  
          AYES:  Ammiano, Arambula, Bass, Beall, Block, Blumenfield,  
            Bradford, Brownley, Charles Calderon, Carter, Coto,  
            Davis, De La Torre, De Leon, Eng, Evans, Feuer, Fong,  
            Fuentes, Furutani, Hall, Hayashi, Hernandez, Hill,  
            Huffman, Jones, Bonnie Lowenthal, Ma, Mendoza, Monning,  
            Nava, V. Manuel Perez, Portantino, Ruskin, Salas,  
            Saldana, Skinner, Solorio, Swanson, Torlakson, Torres,  
            Torrico, Yamada, John A. Perez


                                                               AB 2774

          NOES:  Adams, Anderson, Bill Berryhill, Blakeslee,  
            Buchanan, Caballero, Conway, Cook, DeVore, Emmerson,  
            Fletcher, Fuller, Gaines, Garrick, Gilmore, Hagman,  
            Harkey, Huber, Jeffries, Knight, Logue, Miller, Niello,  
            Nielsen, Norby, Silva, Smyth, Tran, Villines
          NO VOTE RECORDED: Tom Berryhill, Chesbro, Galgiani, Lieu,  
            Nestande, Audra Strickland 

          PQ:nl  6/30/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

                                ****  END  ****