BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 578|
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THIRD READING
Bill No: AB 578
Author: Low (D)
Amended: 4/13/15 in Assembly
Vote: 21
SENATE LABOR & IND. REL. COMMITTEE: 4-1, 6/24/15
AYES: Mendoza, Jackson, Leno, Mitchell
NOES: Stone
SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/27/15
AYES: Lara, Beall, Hill, Leyva, Mendoza
NOES: Bates, Nielsen
ASSEMBLY FLOOR: 52-27, 6/2/15 - See last page for vote
SUBJECT: Occupational safety and health
SOURCE: International Union of Elevator Constructors
DIGEST: This bill requires an applicant for a temporary or
permanent variance to an occupational safety and health standard
to give notice to affected workers (or their representatives) at
the place of employment, as specified.
ANALYSIS:
Existing law:
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1) 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)
2) 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
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)
3) 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)
4) Gives the board authority to grant a variance from any
standard or portion where it 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)
5) 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)
6) 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)
7) Allows an employer to apply for a temporary order granting a
variance from an occupational safety or health standard and
specifies such an order shall only be granted if an employer
establishes he or she (a) is unable to comply with a standard
by its effective date because of unavailability of
professional or technical personnel or of materials and
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equipment needed, (b) is taking all available steps to
safeguard his employees against the hazards covered by the
standard, and (c) has an effective program for coming into
compliance with the standard as quickly as practicable.
(Labor Code §6450)
8) 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 his program for coming in compliance with
the standard. (Labor Code §6450)
9) States that such a temporary order may be granted only after
notice to employees and an opportunity for a hearing (Labor
Code §6450)
10)States that an application for a temporary variance contains
the following:
a) A specification of the standard or portion from which
the employer seeks a variance.
b) 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.
c) A statement of the steps he has taken and will take,
with specific dates, to protect employees against the
hazard covered by the standard.
d) 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.
e) 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
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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
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)States all board decisions on a permanent variance shall be
final except for a rehearing or judicial review provided for
by law.
5)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.
6)Provides that a temporary variance may be granted only after
notice to employees and other "affected workers" and an
opportunity for a hearing.
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7)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.
8)Provides that, upon request, any "affected worker" or
representative of affected workers, shall be granted party
status to the variance proceedings.
Comments
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)). 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
representatives may elect to participate as parties at any time
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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].
Temporary Variances
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
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compliance with the standard as quickly as practicable.
(Labor Code 6450(a).
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 this
bill, in practice 'employees' are considered to be the employees
of the applicant who is seeking the variance. They provide an
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.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: Yes
According to the Senate Appropriations Committee, the Department
of Industrial Relations would incur first-year costs (special
funds) of $291,000 and ongoing costs of $275,000 to implement
the provisions of this bill.
SUPPORT: (Verified8/28/15)
International Union of Elevator Constructors (source)
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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: (Verified8/28/15)
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
ARGUMENTS IN SUPPORT: Proponents of this 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
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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
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.
ARGUMENTS IN OPPOSITION:A coalition of organizations, including
the California Chamber of Commerce, opposes this bill. 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
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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.
ASSEMBLY FLOOR: 52-27, 6/2/15
AYES: Alejo, Bloom, Bonilla, Bonta, Brown, Burke, Calderon,
Campos, Chau, Chiu, Chu, Cooley, Cooper, Dababneh, Daly, Dodd,
Eggman, Frazier, Cristina Garcia, Eduardo Garcia, Gatto,
Gipson, Gomez, Gonzalez, Gordon, Gray, Roger Hernández,
Holden, Irwin, Jones-Sawyer, Levine, Lopez, Low, McCarty,
Medina, Mullin, Nazarian, O'Donnell, Perea, Quirk, Rendon,
Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone,
Thurmond, Ting, Weber, Williams, Wood, Atkins
NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang,
Dahle, Beth Gaines, Gallagher, Grove, Hadley, Harper, Jones,
Kim, Lackey, Linder, Maienschein, Mathis, Mayes, Melendez,
Obernolte, Olsen, Patterson, Steinorth, Wagner, Waldron, Wilk
NO VOTE RECORDED: Chávez
Prepared by:Deanna Ping / L. & I.R. / (916) 651-1556
8/31/15 8:54:47
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