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 CONTINUED AB 2774 Page 2 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 provisions. 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 observation. AB 2774 Page 3 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 process. FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local: No SUPPORT : (Verified 6/30/10) American Federation of State, County and Municipal Employees Bricklayers and Allied Craftworkers Local 3 of Northern California California Applicants' Attorneys Association California Labor Federation California Nurses Association/National Nurses Organizing Committee California Rural Legal Assistance Foundation East Bay Repetitive Strain Injury Support Group International Brotherhood of Electrical Workers Local No. 595 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 Worksafe! AB 2774 Page 4 OPPOSITION : (Verified 6/30/10) Alpha Fund [oppose unless amended] Associated General Contractors Associated Roofing Contractors of the Bay Area Counties, Inc. Association of California Water Agencies [oppose unless amended] 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 amended] California State Association of Counties [oppose unless amended] 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 SafeCon Walter & Prince, LLP Western Electrical Contractors Association (WECA-IEC) Western Growers AB 2774 Page 5 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 Page 6 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 Page 7 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 ****