BILL ANALYSIS                                                                                                                                                                                                    



                                                                 
           AB 2774
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          CONCURRENCE IN SENATE AMENDMENTS
          AB 2774 (Swanson)
          As Amended  August 19, 2010
          Majority vote
           
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          |ASSEMBLY:  |44-29|(June 2, 2010)  |SENATE: |23-13|(August 24,    |
          |           |     |                |        |     |2010)          |
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           Original Committee Reference:    L. & E.  

           SUMMARY  :  Revises the standards and process for the issuance of  
          citations for "serious" violations of state occupational safety  
          and health laws.

          The  Senate amendments  :

          1 Provide that there shall be a rebuttable presumption that a  
            "serious violation" exists in a place of employment if the  
            Division of Occupational Safety and Health (DOSH) 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 is not  
            sufficient by itself to establish that the violation is  
            serious.

          2)Require DOSH, before issuing a citation alleging that a  
            violation is serious, to make a reasonable attempt to  
            determine and consider specified information from the  
            employer.

          3)Specify that DOSH shall satisfy its requirement to determine  
            and consider the specified information if, not less than 15  
            days prior to issuing a citation for a serious violation, it  
            delivers to the employer a standardized form containing  
            specified information.

          4)Provide that an employer may rebut the presumption and prove  
            that a violation is not serious by demonstrating that the  
            employer did not and could not, with the exercise of  
            reasonable diligence, have known of the presence of the  
            violation.  The employer nay accomplish this by demonstrating  
            both of the following:








                                                                 
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             a)   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; and, 

             b)   The employer took effective action to eliminate employee  
               exposure to the hazard created by the violation as soon as  
               the violation was discovered.

          5)Define "serious physical harm" to mean 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:

                      a)            Inpatient hospitalization for purposes  
                        other than medical observation;

                      b)            The loss of any member of the body;

                      c)            Any serious degree of permanent  
                        impairment; and, 

             d)   Impairment sufficient to cause a part of the body of 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.

          6)Specify that serious physical harm may be caused by a single,  
            repetitive practice, means, method, operation or process.

          7)Provide that a DOSH safety engineer or industrial hygienist  
            who can demonstrate, at the time of the hearing, that his or  
            her DOSH-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  








                                                                 
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            that is relevant to the issue of whether the violation is a  
            serious violation.

          8)Make other related changes as specified.

           EXISTING LAW  provides that a "serious" violation of occupational  
          safety and health law 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.

           AS PASSED BY THE ASSEMBLY  , this bill:

          1 Defined "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;

             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; or,

             e)   A serious illness or impairment of the function of an  
               organ 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)Specified that "serious physical harm" may be caused by a  
            single, repetitive practice, means, method, operation or  
            process.

           FISCAL EFFECT  :  According to the Senate Appropriations  
          Committee, this bill will result in between $300,000 and  
          $600,000 in annual costs (special funds), with a likely overall  
          reduction in appeals process costs in future years.
           COMMENTS  :  This bill attempts to address an issue of significant  
          concern that has been raised by, among others, worker advocates,  








                                                                 
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          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."

          As introduced, this bill attempted to establish a statutory  
          definition for the term "serious physical harm."  However, the  
          bill was opposed by a large coalition of employers as being  
          overly expansive.

          Over the past several months, the interested stakeholders  
          (including the Department of Industrial Relations) have engaged  
          in lengthy negotiations over the issues addressed by this bill.   
          The recent amendments reflect an agreement that has been reached  
          by the parties for a comprehensive solution addressing many  
          issues related to the issuance of citations for "serious"  
          violations, beyond simply the issue of "serious physical harm."

          This bill revamps the process by which "serious" violations are  
          cited by DOSH and how those citations are addressed during the  
          appeals process.  Among other things, the bill sets forth a  
          process whereby DOSH can establish a presumption of a "serious"  
          violation, and the employer has an opportunity to rebut that  
          presumption.

          This bill also sets forth a process for dialogue and  
          communication between DOSH and the employer during the  
          investigation process before a citation is issued.   
          Specifically, the bill requires DOSH, before issuing a citation  
          alleging that a violation is serious, to make a reasonable  
          attempt to determine and consider specified information from the  
          employer.  The bill specifies that DOSH shall satisfy this  
          requirement if, not less than 15 days prior to issuing a  
          citation for a serious violation, it delivers to the employer a  








                                                                 
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          standardized form containing specified information.  While  
          failure by DOSH to provide the form shall not constitute grounds  
          for dismissing the citation, the trier of fact may draw a  
          negative inference if DOSH fails to provide the form.
           

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


                                                                 FN:  
          0006372