BILL ANALYSIS Ó
AB 326
Page A
Date of Hearing: April 10, 2013
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
AB 326 (Morrell) - As Amended: April 3, 2013
SUBJECT : Occupational safety and health standards: reporting.
SUMMARY : Modifies specified reporting requirements related to
occupational safety and health. Specifically, this bill :
1)Provides that every employer shall make an immediate report to
the Division of Occupational Safety and Health (DOSH) of each
fatality or hospitalization incident that occurs within 30
days of a work-related incident.
2)Provides that nothing in this bill shall be construed to
require the reporting of any work-related fatality or
hospitalizations that occurs after 30 days of a work-related
incident.
EXISTING LAW :
1)Requires every employer to file a report to the Department of
Industrial Relations (DIR) of every injury or occupational
illness that results in lost work time or which requires
medical treatment beyond first aid. The report is required to
be filed within five days after the employer obtains knowledge
of the injury or illness.
2)Provides that in every case involving a serious injury or
illness or death, the employer shall also make an immediate
report to DOSH. An employer who violates this requirement may
be assessed a civil penalty of not less than $5,000.
3)Provides that whenever a fire or police agency is called to an
accident in which a serious injury or illness or death occurs
the responding agency shall immediately notify DOSH.
FISCAL EFFECT : Unknown
COMMENTS : This bill is sponsored by the Public Agency Safety
Management Association (PASMA) and appears designed to modify
the state law reporting requirements for specified occupational
safety and health incidents to more closely mirror federal law.
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"Specifically, the concern is that essentially any
hospitalization which may be considered work-related, regardless
of the length of time that has passed since the original
incident, must be reported to Cal/OSHA."<1>
Existing Reporting Requirements Under State Law
Current California law requires every employer to file a report
to DIR of every injury or occupational illness that results in
lost work time or which requires medical treatment beyond first
aid. The report is required to be filed within five days after
the employer obtains knowledge of the injury or illness.
In addition, current law provides that in every case involving a
serious injury or illness or death, the employer shall also make
an immediate report to DOSH. An employer who violates this
requirement may be assessed a civil penalty of not less than
$5,000.
"Serious injury or illness" is defined in Section 330(h) of the
regulations as any hospitalization for a period in excess of 24
hours for other than medical observation.
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<1> PASMA Legislative and Regulatory Representative Bill Taylor,
quoted in "Bill Seeks Changes to § 342(a) Rules." Cal-OSHA
Reporter (March 8, 2013).
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The $5,000 civil penalty<2> for failure to immediately report a
serious injury or illness or death was added by AB 2837 (Koretz)
from 2002. The legislative history of AB 2837 indicates that
the impetus for the bill was raised in a series of articles in
the Orange County Register in October 2001 which reported on
problems with fatal workplace accidents in Orange County that
were not timely reported or investigated. That issue was also
discussed at a hearing of the Senate Committee on Labor and
Industrial Relations in November 2001.
The regulations governing the existing "immediate" reporting
requirement provide that:
"Immediately means as soon as practically possible but not
longer than 8 hours after the
employer knows or with diligent inquiry would have known of
the death or serious injury or illness. If the employer
can demonstrate that exigent circumstances exist, the time
frame for the report may be made no longer than 24 hours
after the incident." (8 C.C.R. § 342(a)).
A 2003 decision of the Occupational Safety and Health Appeals
Board explains the policy rationale behind the reporting
requirement and explains in further detail the contours of the
"immediate" reporting requirement as follows:
"The purpose of the reporting requirement is to allow the
Division to quickly respond to injuries or illnesses
occurring on the job. The Board has long noted that the
purpose of requiring a rapid response is necessary to
inspect potentially dangerous conditions close to the time
of the accident or illness and to examine any equipment
that may have caused an injury or illness. (Alpha Beta
Company, Cal/OSHA App. 77-853, Decision After
Reconsideration (Nov. 2, 1979)) An additional policy behind
the requirement is to provide for a timely inspection by
the Division of potentially dangerous conditions or
equipment that may have caused the injury and that may pose
a safety or health risk to other employees. (Welltech
Incorporated, Cal/OSHA App. 90-784, Decision After
Reconsideration (Aug. 22, 1991))?
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<2> Although the specific application of the $5,000 civil
penalty is not at issue in this bill, it is worth noting that
the $5,000 penalty has been somewhat of a controversial issue
before the OSHA Appeals Board. The main controversy has
surrounded whether the legislative history of AB 2837 supports
allowing DOSH and the OSHA Appeals Board to modify the $5,000
penalty under certain circumstances. In its most recent
decision on this issue, the OSHA Appeals Board has adopted a
rule that generally provides that the $5,000 penalty is
mandatory when an employer fails to report a serious injury or
illness or death, but that the penalty may be modified in
situations where the report is late. "Treating this employer
who reported a few days late, the same as those who fail to
report at all leads to unjust and absurd results." Central
Valley Engineering & Asphalt, Inc. (December 4, 2012). This
standard may or may not comport with the legislative intent of
AB 2837.
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?In order for the purpose of the regulatory requirement to
be served, an employer must be required to report a serious
injury or illness to the Division immediately when the
employer knows or with diligent inquiry would have known of
the death, serious injury or illness. Consistent with the
terms in the regulation and public policy considerations
stated above, it is the facts giving rise to Petitioner's
actual or constructive 'knowledge' of the serious injury
which are dispositive for determining a violation of the
eight-hour rule in section 342(a)?
?Since the Act is aimed at promoting a safe working
environment for all working Californians, liberally
construing the Act consistent with its objectives is
required."
(Benicia Foundry & Iron Works, Inc. (April 24, 2003).
Reporting Requirements Under Federal OSHA
Federal law under the Occupational Safety and Health Act (OSHA)
contains different reporting requirements for employers after
specified incidents. Specifically, the regulations implementing
the federal law provide as follows:
"Within eight (8) hours after the death of any employee
from a work-related incident or the inpatient
hospitalization of three or more employees as a result of a
work-related incident, you must orally report the
fatality/multiple hospitalization by telephone or in person
to the Area Office of the Occupational Safety and Health
Administration (OSHA), U.S. Department of Labor, that is
nearest to the site of the incident." (29 C.F.R. §
1904.39(a)).
In addition, the federal regulations provide as follows:
"(6) Do I have to report a fatality or hospitalization that
occurs long after the incident?
No, you must only report each fatality or multiple
hospitalization incident that occurs within thirty (30)
days of an incident." (29 C.F.R. § 1904.39(b)(6)).
Changes Proposed by This Bill
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This bill provides that every employer shall make an immediate
report to DOSH of each fatality or hospitalization incident that
occurs within 30 days of a work-related incident. The bill also
provides that nothing shall be construed to require the
reporting of any work-related fatality hospitalizations that
occurs after 30 days of a work-related incident.
Thus, it appears that this bill seeks to generally track the
federal 30-day reporting requirement. As introduced, the bill
referred to "multiple hospitalizations," which seemed to track
the federal definition for "inpatient hospitalization of three
or more employees." However, the bill has subsequently been
amended to delete the reference to "multiple" hospitalizations.
ARGUMENTS IN SUPPORT :
The author states the following in support of this bill:
"There are several problems with this approach to injury
reporting. Requiring California employers and Fire and Police
Agencies to report every employee hospitalization to OSHA
within 8 hours is neither reasonable, feasible, nor effective.
Because there is no statute of limitations on reporting these
hospitalizations, California employers, including Public
Sector employers, could be cited and fined $5,000 for any
hospitalization, such as one for back or carpal tunnel
surgery, which frequently occurs several months or even years
after the date of the injury.
This low threshold for injury reporting and the lack of a
statute of limitations is not consistent with Federal/OSHA
language, specifically, 29 CFR Section 1904.39(b)(6), which
requires that only fatalities and multiple hospitalization
incidents which occur within 30 days of the incident are
required to be reported. It is estimated that over 95% of
work-related hospitalizations which occur 30 days or more
after the initial injury are for non-emergency type medical
procedures such as orthopedic injuries, such as back or carpal
tunnel surgeries. These hospitalizations almost always occur
several months or even years after the actual injury.
The legislative intent of reporting fatalities and
multiple hospitalizations incidents that occur within 30 days
of an incident was to allow OSHA to focus more closely and
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respond immediately to those serious hazards in workplaces,
and to immediately address any imminent hazards so that OSHA
could make the corrections to protect other workers from
suffering similar injuries. The hospitalizations which occur
more than 30 days after incident do not rise to the level of
serious injuries or illness which should require an onsite
inspection and investigation by an OSHA compliance officer.
In addition to the problem of reporting hospitalizations which
occurs several months after an incident, the reporting of
every hospitalization creates a tremendous burden on our Fire
Departments who also have to report any work-related
hospitalizations. If a Fire Department does not report each
work-related hospitalization they can be assessed a $5,000
penalty.
Based on Recent data from the Fed/OSHA EFAME audits, because
California has such a low threshold for reporting, California
employers and fire/police departments are reporting 14 times
as many injuries to Cal/OSHA compared to those employers and
Fire/Police departments in other states. The result is that a
significant amount of time is being misallocated as a result
of the requirements for gathering information and reporting
these hospitalization incidents for what in many cases are
either relatively minor injuries, or injuries that don't rise
to the level of what Fed/OSHA considers to be a serious
incident.
In California a significant portion of staff time and a
Cal/OSHA compliance officer's workday is spent responding to
these reported accidents. In fact, a recent audit of the
Cal/OSHA program by Fed/OSHA revealed that 26% of all
inspections in California were result of accidents reported to
Cal/OSHA. In comparison, in almost every State OSHA plan,
accident related inspections accounted for 2% of all OSHA
inspections. California is diverting limited staff and
resources responding to these "accident reports", when if the
Federal Standard were followed more staff time could be
allocated to conducting programmed or focused inspections on
high hazard workplaces, rather than responding to many of
these less severe reported hospitalizations. California's
inspection priorities appear to be adapted to a more reactive
rather than proactive mode as it relates to injury prevention
and workplace safety efforts."
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Similarly, other supporters, including the California Chamber of
Commerce, argue that a "limitless" reporting period is
unwarranted and creates confusion and unjust liability for
employers. The purpose of immediate reporting of a serious
injury or fatality due to a work-related incident is so that
DOSH can quickly open an investigation and inspect the
workplace's conditions. This is to ensure preservation of
evidence and to determine whether any modification could prevent
similar subsequent occurrences. Supporters argue that such
rationale vanishes after substantial times has passed after the
incident.
ARGUMENTS IN OPPOSITION :
The California Labor Federation opposes this measure and states
that current law states that employers must "immediately" report
workplace injuries and illnesses to DOSH, in most cases within
eight hours. This short time frame is critical for several
reasons, chief among them the pressing need for DOSH experts to
examine the worksite and assess whether or not other workers
also face the risk of harm.
The California Labor Federation argues that, simply because an
injury is recent, the hazard responsible for the injury may not
be. Workers at a given site may have been working under
unreasonably or illegally dangerous conditions for years. In
such a case, it is still imperative that inspectors get to the
site and take necessary precautionary measures as soon as
possible. Otherwise, easily preventable injuries connected to
the same hazard could happen at any time.
The California Labor Federation states that this bill would
eliminate an employer's responsibility to report a workplace
injury or illness if a worker seeks treatment more than 30 days
after the incident. This change would hide many injuries from
DOSH's purview and thus preserve countless serious and
potentially fatal hazards in every industry sector across
California. What is worse is that some of the most crippling
workplace illnesses carry latency periods much longer than 30
days. This bill would prolong workers' exposure to the most
serious hazard.
The California Nurses Association writes the following in
opposition to this bill:
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"The premise of [this bill] relies upon an assumption that
the safety of a workplace is tied directly to the length of
time it takes for an injured worker to seek medical
treatment, and that a fatality or hospitalization that
occurs more than 30 days after a hazardous incident occurs
does not rise to the level of a serious injury or illness
triggering a Cal/OSHA inspection. We disagree with this,
and assert that there are a variety of reasons that an
injured worker may not seek medical treatment until after
30 days of a workplace injury or illness has occurred. For
example, registered nurses (RN) may be exposed to a variety
of infectious diseases through their daily course of work,
some of which, including tuberculosis and HIV, have
incubation periods that may extend beyond 30 days.
Further, RNs and other health care workers regularly
sustain musculoskeletal injuries while on duty,
particularly from lifting and handling patients. Some of
these injuries may not rise to the level of hospitalization
within 30 days, but over time may require hospitalization.
Under this bill, fatalities or hospitalizations for these
ill or injured employees would go unreported, and Cal/OSHA
would not be able to hold the employer accountable and
ensure that action by the employer is taken to prevent
similar hazards from occurring.
The length of time an employee takes to seek treatment for
a work-related injury or illness is not indicative of
whether or not a workplace is safe or an employer is taking
the appropriate precautions to prevent hazards from
occurring. Cal/OSHA should be informed of workplace
hazards regardless of how long a fatality or
hospitalization occurs after an incident so that it can
promptly inspect and ensure that employers are properly
protecting employees and providing safe and healthy
workplaces."
Similarly, other opponents state that, for various reasons,
injured workers often do not seek medical treatment until
sometime after an incident occurred. Symptoms frequently take
days, months, or even years to manifest, employees may fear
retaliation, or a worker may not even realize that their
condition stems from a work-related injury. The fact that a
worker has waited to seek care can mean any number of things,
but it does not in any way relate to the question of whether or
not the hazard responsible still exists.
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REGISTERED SUPPORT / OPPOSITION :
Support
Associated General Contractors of California
Associated Roofing Contractors of the Bay Area Counties, Inc.
California Association of Joint Powers Authorities
California Chamber of Commerce
California Chapter of American Fence Association
California Farm Bureau Federation
California Fence Contractors' Association
California Framing Contractors Association
California Manufacturers and Technology Association
California Professional Association of Specialty Contractors
California State Association of Counties
Engineering Contractors' Association
Flasher Barricade Association
Marin Builders Association
Public Agency Safety Management Association (sponsor)
Residential Contractor's Association
Walter & Prince LLP
Opposition
California Labor Federation, AFL-CIO
California Nurses Association
California Rural Legal Assistance Foundation
California State Association of Electrical Workers
California State Pipe Trades Council
National Lawyers Guild, Labor and Employment Committee
State Building and Construction Trades Council
Western States Council of Sheet Metal Workers
WORKSAFE
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091