BILL ANALYSIS Ó
AB 578
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Date of Hearing: April 8, 2015
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
AB 578
(Low) - As Proposed to be Amended April 8, 2015
SUBJECT: Occupational safety and health
SUMMARY: Makes changes to existing law related to variances
from occupational safety and health standards. Specifically,
this bill:
1)Requires an applicant for a permanent variance to an
occupational safety and health standard to also give notice to
workers at the place of employment who will be "affected" by
the permanent variance, or representatives of the affected
employees.
2)Provides that an applicant for a permanent variance shall
provide certification that the affected employees have been
provided notice of the request.
3)Provides that, upon request, "affected employees" or their
representatives shall be granted party status in permanent
variance proceedings.
4)Requires an employer applying for a temporary variance to an
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occupational safety and health standard to also give notice to
workers at the place of employment who will be "affected" by
the temporary variance, or representative of the affected
workers.
5)Provides that a temporary variance may be granted only after
notice to employees and other "affected workers" and an
opportunity for a hearing.
6)Requires an employer's application for a temporary variance to
contain a certification that the employer has given the
required notice to "affected workers" or their
representatives.
7)Provides that, upon request, any "affected worker" or
representative of affected workers, shall be granted party
status to the variance proceedings.
8)Makes related and conforming changes.
FISCAL EFFECT: Unknown
COMMENTS: The Occupational Safety and Health Standards Board
(Standards Board) was created by the Legislature in 1973. The
duties of the Standards Board include (1) adopting occupational
safety and health standards, (2) considering petitions for new
or revised standards, and (3) granting variances from such
standards. The Division of Occupational Safety and Health
(Division) enforces the health and safety standards adopted by
the Standards Board.
General Background on Variances to Safety Standards
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As discussed above, the Standards Board adopts occupational
safety and health standards that are designed to protect
California workers. However, existing law sets forth a process
whereby an employer may apply for a "variance," which is
generally permission to deviate or not follow an existing
standard. These variances fall into two categories - permanent
variances and temporary variances.
Permanent Variances
An employer may apply to the Standards Board for a permanent
variance from a standard (or portion thereof), upon a showing of
an alternative program, method, practice, means, device, or
process which will provide equal or superior safety for
employees (Labor Code 143(a)). The Standards Board shall grant
the request if it determines, by a preponderance of the
evidence, that the condition or practice proposed to be used by
the employer will provide employment and places of employment
which are as safe and healthful as those which would prevail if
he or she complied with the standard. (Labor Code 143(b)). A
permanent variance may be modified or revoked upon application
by an employer, employees, or the Division, or by the Standards
Board on its own motion. (Labor Code 143(d)).
The law requires the Standards Board to conduct hearings on
requests for permanent variances after employees or employee
representatives are properly notified and given an opportunity
to appear. (Labor Code 143.1). Standards Board regulations
provide that "affected employees" and authorized employee
representative may elect to participate as parties as any time
before commencement of the variance hearing. (California Code
of Regulations, Title 8, Section 406(a)).
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The regulations define "affected employee" to mean:
"[A]n employee of the employer seeking the variance who is
exposed, as a result of his or her assigned duties, to the
condition or hazards covered by the standard for which the
variance is sought." (California Code of Regulations, Title
8, Section 403(l))[emphasis provided].
As will be made clear below, the limitation of the definition of
"affected employee" to employees of the employer seeking the
variance (rather than other employees of other employers) has
become an issue of concern in some recent cases.
Temporary Variances
As the name suggests, temporary variances differ from permanent
variances in that they are temporary in nature. Temporary
variances also have different procedures and standards that
apply. First, applications for temporary variances are made to
the Division, rather than the Standards Board. However, the
decision by the Division to allow or deny the variance may be
appealed to the Standards Board.
The criteria for the granting of a temporary variance also
differ from those governing permanent variances. A temporary
variance shall be granted only if the employer establishes that:
1) He or she is unable to comply with a standard by its
effective date because of unavailability of professional or
technical personnel or of materials and equipment needed to
come into compliance with the standard or because necessary
construction or alteration of facilities cannot be
completed by the effective date;
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2) He or she is taking all available steps to safeguard the
employees against the hazards covered by the standard; and
3) He or she has an effective program for coming into
compliance with the standard as quickly as practicable.
(Labor Code 6450(a).
No temporary variance may be in effect for longer than the
period needed by the employer to achieve compliance with the
standard, or one year, whichever is shorter, except that such a
variance may be renewed not more than twice (for no longer than
180 days per renewal). (Labor Code 6450(b)).
Recent Elevator Variances Highlight Reported "Gaps" in the
Existing Process
According to the Standards Board, in recent years the
overwhelming majority (over 90 percent) of all variance
applications have been for standards related to public
conveyances (including elevators). There is speculation that
this is due to the fact that the elevator safety orders have not
been amended in some time, resulting in a high number of
variance applications to deviate from the "outdated" standards.
Proceedings are reportedly currently underway to revise the
elevator safety orders, which may decrease the number of
variance applications.
When a variance application related to an elevator safety order
is filed, the variance applicant is technically the building
owner. In fact, the regulations define employer to include
"conveyance owners," defined as the "person or entity that has
custody of a conveyance covered by the elevator safety orders,
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or that owns property on or in which such a conveyance is to be
installed." (California Code of Regulations, Title 8, Section
403(n) and (o)). However, past practice at the Standards Board
has reportedly been to allow the elevator manufacturer to "stand
in the shoes" of the building owner and pursue the variance
application.
Current regulations specify that in lieu of posting conveyance
documents, conveyance owners shall provide copies to the
building maintenance provider and to the maintenance provider
for the conveyance, and contain an exception in situations where
the building is under construction or otherwise unoccupied.
(California Code of Regulations, Title 8, Section 411.3).
As discussed above, current regulations provide that "affected
employees" and authorized employee representative may elect to
participate as parties as any time before commencement of the
variance hearing. However, because the current definition of
"affected employees" means employees of the "employer seeking
the variance," this would technically only apply to employees of
the building owner, who are not the employees who would be most
impacted by a variance. This bill is sponsored by the
International Union of Elevator Constructors, Local 8 and 18.
The sponsors state that they represent the workers who install,
repair, maintain, and inspect the elevators - the workers who
will be directly affected by the variance. However, because
these workers are not employees of the "employer seeking the
variance," they are not covered by the notice and other related
provisions of the law. They contend that broadening the
definition of affected employee will appropriately include all
employees who will be affected by the variance and ensure that
they receive notice of these important variance applications.
In several variance proceedings in recent months, the Sponsors
have petitioned to be designated as "parties" in the
proceedings, but report that some of the requests have been
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denied and they have instead been granted "intervenor" status.
In general, a party to a proceeding has full rights to present
evidence, call witnesses, and cross-examine witnesses. In
contrast, while an intervenor may exercise similar rights, it
remains the discretion of the administrative law judge or
presiding officer to determine whether such rights will be
afforded to the intervenor. This bill will provide that upon
request, any "affected worker" or representative of affected
workers shall be granted party status to the variance
proceedings.
ARGUMENTS IN SUPPORT
The sponsors argue that the Standards Board has the authority to
grant variances to occupational safety and health standards.
Existing law requires that affected employees be notified of the
variance request. Requests for variances for elevator
construction and other public conveyances generally come from
the building owner. In these instances, the owner rarely has
affected employees. The workers, hired by the elevator
manufacturer, will be installing the public conveyance but will
not have been a party to the variance proceeding.
The sponsors state that this legislation will simply provide
that those employees who are directly affected by the variance
be notified of the variance application and be granted party
status upon request.
ARGUMENTS IN OPPOSITION
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A coalition of organizations, including the California Chamber
of Commerce, opposes this measure. They argue that this bill
proposes to significantly expand the employer's notice
obligations not only beyond affected employees and their
representatives, but into an unknown region of "workers at the
place of employment who will be affected by the permanent
variance, or representatives of affected workers who may be
affected by or exposed to the hazards by the temporary
variance." The other workers would not be employees of the
employer seeking the variance, making it difficult for the
employer to identify the universe of workers to be notified.
Opponents also state that this bill is unnecessary and opens the
door to abuse. Employers are currently required to notice
affected employees and their representative; other interested
parties may apply for intervener status, or appeal a temporary
variance decision. This bill instead proposes to shift the
burden to the employer to determine who in the universe may be
interested. This not only creates additional and unnecessary
administrative and search burdens for employers, it also allows
interference with the employer's legitimate pursuit of a
variance.
Finally, opponents acknowledge that current regulation language
"appears to create the concern" giving rise to this bill.
However, rather than adopt a change in statute that would impact
all industries, they urge the author to look at changes in
regulation that would address any notification challenges that
may exist in the process for permanent or temporary variance
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applications for conveyances.
PRIOR RELATED LEGISLATION
AB 1277 (Skinner) from 2014, among other things, had language
that attempted to address issues related to notification and due
process rights of affected employees in variance proceedings.
However, the language was not identical to that contained in
this bill. AB 1277 was held in the Assembly Appropriations
Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
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CA Conference Board of the Amalgamated Transit Union
CA Conference of Machinists
California Labor Federation, AFL-CIO
California State Council of Electrical Workers
California State Pipe Trades Council
California Teamsters Public Affairs Council
Coalition of California Utility Employees
Engineers & Scientists of California
International Longshore & Warehouse Union
International Union of Elevator Constructors, Local 18
(co-sponsor)
International Union of Elevator Constructors, Local 8
(co-sponsor)
Professional & Technical Engineers
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State Building and Construction Trades Council
UNITE-HERE
Utility Workers Union of America
Western States Council of Sheet Metal Workers
Opposition
Associated Builders and Contractors of California
California Chamber of Commerce
California Farm Bureau Federation
California Framing Contractors Association
California Hotel and Lodging Association
California Lodging Industry Association
California Manufacturers and Technology Association
California Professional Association of Specialty Contractors
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Residential Contractors Association
Walter and Prince, LLC
Western Growers
Western Steel Council
Analysis Prepared by:Ben Ebbink / L. & E. / (916) 319-2091