BILL ANALYSIS Ó SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS Senator Tony Mendoza, Chair 2015 - 2016 Regular Bill No: AB 578 Hearing Date: June 24, 2015 ----------------------------------------------------------------- |Author: |Low | |-----------+-----------------------------------------------------| |Version: |April 13, 2015 | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Deanna Ping | | | | ----------------------------------------------------------------- Subject: Occupational safety and health. KEY ISSUE Should the Legislature extend the notification requirement for permanent and temporary variance applications to include 'affected workers?' Should the Legislature grant party status to affected workers or representatives of affected workers to participate in variance proceedings? ANALYSIS Existing law provides that an employer may apply to the Occupational Safety and Health Standards Board for a permanent variance from an occupational safety health standard, order, or special order upon showing an alternate program, method, practice, means, device, or process which will provide equal or superior safety for the employees. (Labor Code §143) Existing law provides that the board shall issue such a variance if it determines on the record, after opportunity for an investigation where appropriate and a hearing, that the AB 578 (Low) Page 2 of ? proponent of the variance has demonstrated by a preponderance of the evidence that the conditions, practices, means, methods, operations, or processes used or proposed to be used by an employer are as safe and healthful as those which would prevail if he complied with the standard. (Labor Code §143) Existing law states that the variance shall prescribe the conditions the employer must maintain and the practices, means, methods, operations, and processes which he must adopt and utilize to the extent they differ from the standard in question. (Labor Code §143) Existing law gives the board authority to grant a variance from any standard or portion where is determines a variance is necessary to permit an employer to participate in an experiment approved by the director designed to demonstrate or validate new and improved techniques to safeguard the health or safety of workers. (Labor Code §143) Existing law states the board shall conduct hearing on such requests for a permanent variance after employees or employee representatives are properly notified and given an opportunity to appear. (Labor Code §143.1) Existing law states that all board decisions on permanent variance requests shall be final except for any rehearing or judicial review provided by law. (Labor Code §143.1) Existing law allows an employer to apply for a temporary order granting a variance from an occupational safety of health standard and specifies such an order shall only be granted if an employer establishes (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, (2) is taking all available steps to safeguard his employees against the hazards covered by the standard, and (3) has an effective program for coming into compliance with the standard as quickly as practicable. (Labor Code §6450) Existing law provides that any temporary order issued shall prescribe the practices, means, methods, operations, and processes which the employer must adopt and use while the order is in effect and state in detail that his program for coming in compliance with the standard. (Labor Code §6450) AB 578 (Low) Page 3 of ? Existing law states such a temporary order may be granted only after notice to employees and an opportunity for a hearing (Labor Code §6450) Existing law states that an application for a temporary variance contains the following: 1) A specification of the standard or portion from which the employer seeks a variance 2) A representation by the employer, supported by representations from qualified persons having firsthand knowledge of the facts represented, that he is unable to comply with the standard and a detailed statement of the reasons 3) A statement of the steps he has taken and will take, with specific dates, to protect employees against the hazard covered by the standard. 4) A statement of when he expects to be able to comply with the standard and what steps he has taken and what steps he will take, with dates specified to come into compliance with the standard. 5) A certification that he has informed his employees of the application by giving a copy to their authorized presentative, posting a statement giving a summary of the application and specifying where a copy may be examined at the place or places where notices to employees are normally posted, and by other appropriate means. The information to employees shall also inform them of their right to petition the division of a hearing. This Bill 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 or exposed to hazards by the permanent variance, or representatives of the affected employees. 2)Provides that an applicant for a permanent variance shall AB 578 (Low) Page 4 of ? 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 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. COMMENTS 1. Background on Variances and the Occupational Health and Safety Standards Board 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. AB 578 (Low) Page 5 of ? 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)). 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)). 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 AB 578 (Low) Page 6 of ? 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; 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). 2. Need for this bill? Currently, the Cal/OSHA Standards Board has authority under the Labor Code to consider variances to Cal/OSHA standards when a building is being constructed, repaired, or updated - the vast majority of these variances are requests for conveyances such as elevators and escalators. Existing law provides that a variance may be considered by the Standards Board only after notice is given to employees. According to the author and sponsors of the bill, in practice 'employees' are considered to be the employees of the applicant who is seeking the variance. They provide an AB 578 (Low) Page 7 of ? example of a building owner that is seeking a variance from a Cal/OSHA standard for the installation of a public conveyance, such as an elevator, and the owner may have no employees or very few that would be exposed to the installation activity, whereas the workers that may be a part of the installation may not be informed because they are not employees of the employer seeking the variance. According to the author, the lack of notification to affected employees negatively impacts their ability to participate as a party to the necessary variance proceedings. This bill will provide that upon request, any "affected worker" or representative of affected workers receive notification of an application for a variance and shall be granted party status to the variance proceedings. 3. Proponent Arguments : Proponents of the bill note that the Cal/OSHA Standards Board is responsible for hearing applications for variances from Cal/OSHA health and safety standards - receiving approximately 400 requests for permanent variances each year. Proponents also note that about 90 percent of these applications are for elevators and other public conveyances and that 95 percent of these elevators are installed by the members of the International Union of Elevator Constructors. Proponents contend that the large number of variances are due to two factors: One, the Elevator Safety Orders have not been amended for quite some time, although that process is underway and hopefully will be complete within the next year and secondly, the elevator manufacturers are always developing new and creative systems that may not be anticipated by Cal/OSHA standards. Proponents argue that the variance application requires that the applicant give notice to their affected employees. They note that the applicant is generally the building owner and the building owner will rarely have any affected employees which as a result, those workers who will be doing the installation of the elevator will not receive notice of the variance proceeding. Proponents argue that AB 578 simply requires that the applicant AB 578 (Low) Page 8 of ? provide notice to those workers or their authorized representative of the application for a variance from the safety orders and that this notice will allow the workers to participate in the proceeding, if they wish, but more importantly will add an experienced voice to the variance process. Proponents contend that AB 578 will provide additional transparency to the variance process with the anticipated benefit of a collaborative exchange resulting in a safer installation. 4. Opponent Arguments : 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 applications for conveyances. AB 578 (Low) Page 9 of ? 5. Prior Legislation : AB 1277 (Skinner) of 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. SUPPORT International Union of Elevator Constructors (Sponsor) California Conference Board of the Amalgamated Transit Union California Conference of Machinists California Labor Federation, AFL-CIO California Professional Firefighters California School Employees Association, AFL-CIO California State Association of Electrical Workers California State Pipe Trades Council California Teamsters Public Affairs Council Coalition of California Utility Employees Engineers and Scientists of California International Longshore & Warehouse Union Professional & Technical Engineers UNITE-HERE, AFL-CIO Utility Workers Union of America Western Occupational & Environmental Medical Association OPPOSITION Associated Builders and Contractors of California California Chamber of Commerce California Citrus Mutual 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 Residential Contractors Association Walter and Prince, LLP Western Growers Western Steel Council AB 578 (Low) Page 10 of ? -- END --