California Legislature—2015–16 Regular Session

Assembly BillNo. 2895


Introduced by Committee on Labor and Employment (Assembly Members Roger Hernández (Chair), Chu, Low, McCarty, and Thurmond)

March 1, 2016


An act to amend, repeal, and add Section 6401.7 of the Labor Code, relating to employment safety.

LEGISLATIVE COUNSEL’S DIGEST

AB 2895, as introduced, Committee on Labor and Employment. Employee safety: injury prevention programs.

The California Occupational Safety and Health Act of 1973 establishes certain safety and other responsibilities of employers and employees. Violations of the act under certain circumstances are a crime.

The act requires every employer to establish, implement, and maintain an effective injury prevention program. The act requires the program to be written, except as specified, and to include certain elements. The act requires the employer to identify a person responsible for implementing the program and to correct unsafe and unhealthy conditions and work practices in a timely manner based on the severity of the hazard.

This bill would, commencing July 1, 2017, require an employer to keep a complete, updated copy of specified records relating to the injury prevention program at each worksite and to make them, or a summary thereof, available to any employee upon oral request. The bill would also require an employer to provide a copy of the records, or a summary thereof, to each employee and each new hire, as specified. The bill would make a violation of certain of these provisions an infraction and would impose civil penalties for certain violations.

Because a violation of these provisions would be a crime under certain circumstances, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 6401.7 of the Labor Code is amended to
2read:

3

6401.7.  

(a) Every employer shall establish, implement, and
4maintain an effective injury prevention program. The program
5shall be written, except as provided in subdivision (e), and shall
6include, but not be limited to, the following elements:

7(1) Identification of the person or persons responsible for
8implementing the program.

9(2) The employer’s system for identifying and evaluating
10workplace hazards, including scheduled periodic inspections to
11identify unsafe conditions and work practices.

12(3) The employer’s methods and procedures for correcting
13unsafe or unhealthy conditions and work practices in a timely
14manner.

15(4) An occupational health and safety training program designed
16to instruct employees in general safe and healthy work practices
17and to provide specific instruction with respect to hazards specific
18to each employee’s job assignment.

19(5) The employer’s system for communicating with employees
20on occupational health and safety matters, including provisions
21designed to encourage employees to inform the employer of
22hazards at the worksite without fear of reprisal.

23(6) The employer’s system for ensuring that employees comply
24with safe and healthy work practices, which may include
25disciplinary action.

P3    1(b) The employer shall correct unsafe and unhealthy conditions
2and work practices in a timely manner based on the severity of the
3hazard.

4(c) The employer shall train all employees when the training
5program is first established, all new employees, and all employees
6given a new job assignment, and shall train employees whenever
7new substances, processes, procedures, or equipment are introduced
8to the workplace and represent a new hazard, and whenever the
9employer receives notification of a new or previously unrecognized
10hazard. An employer in the construction industry who is required
11to be licensed under Chapter 9 (commencing with Section 7000)
12of Division 3 of the Business and Professions Code may use
13employee training provided to the employer’s employees under a
14construction industry occupational safety and health training
15program approved by the division to comply with the requirements
16of subdivision (a) relating to employee training, and shall only be
17required to provide training on hazards specific to an employee’s
18job duties.

19(d) The employer shall keep appropriate records of steps taken
20to implement and maintain the program. An employer in the
21construction industry who is required to be licensed under Chapter
229 (commencing with Section 7000) of Division 3 of the Business
23and Professions Code may use records relating to employee training
24provided to the employer in connection with an occupational safety
25and health training program approved by the division to comply
26with this subdivision, and shall only be required to keep records
27of those steps taken to implement and maintain the program with
28respect to hazards specific to an employee’s job duties.

29(e) (1) The standards board shall adopt a standard setting forth
30the employer’s duties under this section, on or before January 1,
311991, consistent with the requirements specified in subdivisions
32(a), (b), (c), and (d). The standards board, in adopting the standard,
33shall include substantial compliance criteria for use in evaluating
34an employer’s injury prevention program. The board may adopt
35less stringent criteria for employers with few employees and for
36employers in industries with insignificant occupational safety or
37health hazards.

38(2) Notwithstanding subdivision (a), for employers with fewer
39than 20 employees who are in industries that are not on a
40designated list of high hazard industries and who have a workers’
P4    1compensation experience modification rate of 1.1 or less, and for
2any employers with fewer than 20 employees who are in industries
3that are on a designated list of low hazard industries, the board
4shall adopt a standard setting forth the employer’s duties under
5this section consistent with the requirements specified in
6subdivisions (a), (b), and (c), except that the standard shall only
7require written documentation to the extent of documenting the
8person or persons responsible for implementing the program
9 pursuant to paragraph (1) of subdivision (a), keeping a record of
10periodic inspections pursuant to paragraph (2) of subdivision (a),
11and keeping a record of employee training pursuant to paragraph
12(4) of subdivision (a). To any extent beyond the specifications of
13this subdivision, the standard shall not require the employer to
14keep the records specified in subdivision (d).

15(3) (A) The division shall establish a list of high hazard
16industries using the methods prescribed in Section 6314.1 for
17identifying and targeting employers in high hazard industries. For
18purposes of this subdivision, the “designated list of high hazard
19industries” shall be the list established pursuant to this paragraph.

20(B) For the purpose of implementing this subdivision, the
21Department of Industrial Relations shall periodically review, and
22as necessary revise, the list.

23(4) For the purpose of implementing this subdivision, the
24Department of Industrial Relations shall also establish a list of low
25hazard industries, and shall periodically review, and as necessary
26revise, that list.

27(f) The standard adopted pursuant to subdivision (e) shall
28specifically permit employer and employee occupational safety
29and health committees to be included in the employer’s injury
30prevention program. The board shall establish criteria for use in
31evaluating employer and employee occupational safety and health
32committees. The criteria shall include minimum duties, including
33the following:

34(1) Review of the employer’s periodic, scheduled worksite
35inspections; investigation of causes of incidents resulting in injury,
36illness, or exposure to hazardous substances; and investigation of
37any alleged hazardous condition brought to the attention of any
38committee member. When determined necessary by the committee,
39the committee may conduct its own inspections and investigations.

P5    1(2) (A) Upon request from the division, verification of
2abatement action taken by the employer as specified in division
3citations.

4(B) If an employer’s occupational safety and health committee
5meets the criteria established by the board, it shall be presumed to
6be in substantial compliance with paragraph (5) of subdivision (a).

7(g) The division shall adopt regulations specifying the
8procedures for selecting employee representatives for
9employer-employee occupational health and safety committees
10when these procedures are not specified in an applicable collective
11bargaining agreement. No employee or employee organization
12shall be held liable for any act or omission in connection with a
13health and safety committee.

14(h) The employer’s injury prevention program, as required by
15this section, shall cover all of the employer’s employees and all
16other workers who the employer controls or directs and directly
17supervises on the job to the extent these workers are exposed to
18worksite and job assignment specific hazards. Nothing in this
19subdivision shall affect the obligations of a contractor or other
20employer that controls or directs and directly supervises its own
21employees on the job.

22(i) When a contractor supplies its employee to a state agency
23employer on a temporary basis, the state agency employer may
24assess a fee upon the contractor to reimburse the state agency for
25the additional costs, if any, of including the contract employee
26within the state agency’s injury prevention program.

27(j) (1) The division shall prepare a Model Injury and Illness
28Prevention Program for Non-High-Hazard Employment, and shall
29make copies of the model program prepared pursuant to this
30subdivision available to employers, upon request, for posting in
31the workplace. An employer who adopts and implements the model
32program prepared by the division pursuant to this paragraph in
33good faith shall not be assessed a civil penalty for the first citation
34for a violation of this section issued after the employer’s adoption
35and implementation of the model program.

36(2) For purposes of this subdivision, the division shall establish
37a list of non-high-hazard industries in California. These industries,
38identified by their Standard Industrial Classification Codes, as
39published by the United States Office of Management and Budget
40in the Manual of Standard Industrial Classification Codes, 1987
P6    1Edition, are apparel and accessory stores (Code 56), eating and
2drinking places (Code 58), miscellaneous retail (Code 59), finance,
3insurance, and real estate (Codes 60-67), personal services (Code
472), business services (Code 73), motion pictures (Code 78) except
5motion picture production and allied services (Code 781), legal
6services (Code 81), educational services (Code 82), social services
7(Code 83), museums, art galleries, and botanical and zoological
8gardens (Code 84), membership organizations (Code 86),
9engineering, accounting, research, management, and related
10services (Code 87), private households (Code 88), and
11miscellaneous services (Code 89). To further identify industries
12that may be included on the list, the division shall also consider
13data from a rating organization, as defined in Section 11750.1 of
14the Insurance Code, and all other appropriate information. The list
15shall be established by June 30, 1994, and shall be reviewed, and
16as necessary revised, biennially.

17(3) The division shall prepare a Model Injury and Illness
18Prevention Program for Employers in Industries with Intermittent
19Employment, and shall determine which industries have historically
20utilized seasonal or intermittent employees. An employer in an
21industry determined by the division to have historically utilized
22seasonal or intermittent employees shall be deemed to have
23complied with the requirements of subdivision (a) with respect to
24a written injury prevention program if the employer adopts the
25model program prepared by the division pursuant to this paragraph
26and complies with any instructions relating thereto.

27(k) With respect to any county, city, city and county, or district,
28or any public or quasi-public corporation or public agency therein,
29including any public entity, other than a state agency, that is a
30member of, or created by, a joint powers agreement, subdivision
31(d) shall not apply.

32(l) Every workers’ compensation insurer shall conduct a review,
33including a written report as specified below, of the injury and
34illness prevention program (IIPP) of each of its insureds with an
35experience modification of 2.0 or greater within six months of the
36commencement of the initial insurance policy term. The review
37shall determine whether the insured has implemented all of the
38required components of the IIPP, and evaluate their effectiveness.
39The training component of the IIPP shall be evaluated to determine
40whether training is provided to line employees, supervisors, and
P7    1upper level management, and effectively imparts the information
2and skills each of these groups needs to ensure that all of the
3insured’s specific health and safety issues are fully addressed by
4the insured. The reviewer shall prepare a detailed written report
5specifying the findings of the review and all recommended changes
6deemed necessary to make the IIPP effective. The reviewer shall
7be or work under the direction of a licensed California professional
8engineer, certified safety professional, or a certified industrial
9hygienist.

begin insert

10(m) This section shall remain in effect only until July 1, 2017,
11and as of that date is repealed.

end insert
12

SEC. 2.  

Section 6401.7 is added to the Labor Code, to read:

13

6401.7.  

(a) Every employer shall establish, implement, and
14maintain an effective injury prevention program. The program
15shall be written, except as provided in subdivision (f), and shall
16include, but not be limited to, the following elements:

17(1) Identification of the person or persons responsible for
18implementing the program.

19(2) The employer’s system for identifying and evaluating
20workplace hazards, including scheduled periodic inspections to
21identify unsafe conditions and work practices.

22(3) The employer’s methods and procedures for correcting
23unsafe or unhealthy conditions and work practices in a timely
24manner.

25(4) An occupational health and safety training program designed
26to instruct employees in general safe and healthy work practices
27and to provide specific instruction with respect to hazards specific
28to each employee’s job assignment.

29(5) The employer’s system for communicating with employees
30on occupational health and safety matters, including provisions
31designed to encourage employees to inform the employer of
32hazards at the worksite without fear of reprisal.

33(6) The employer’s system for ensuring that employees comply
34with safe and healthy work practices, which may include
35disciplinary action.

36(b) The employer shall correct unsafe and unhealthy conditions
37and work practices in a timely manner based on the severity of the
38hazard.

39(c) The employer shall train all employees when the training
40program is first established, all new employees, and all employees
P8    1given a new job assignment, and shall train employees whenever
2new substances, processes, procedures, or equipment are introduced
3to the workplace and represent a new hazard, and whenever the
4employer receives notification of a new or previously unrecognized
5hazard. An employer in the construction industry who is required
6to be licensed under Chapter 9 (commencing with Section 7000)
7of Division 3 of the Business and Professions Code may use
8employee training provided to the employer’s employees under a
9construction industry occupational safety and health training
10program approved by the division to comply with the requirements
11of subdivision (a) relating to employee training, and shall only be
12required to provide training on hazards specific to an employee’s
13job duties.

14(d) The employer shall keep appropriate records of steps taken
15to implement and maintain the program. An employer in the
16construction industry who is required to be licensed under Chapter
179 (commencing with Section 7000) of Division 3 of the Business
18and Professions Code may use records relating to employee training
19provided to the employer in connection with an occupational safety
20and health training program approved by the division to comply
21with this subdivision, and shall only be required to keep records
22of those steps taken to implement and maintain the program with
23respect to hazards specific to an employee’s job duties.

24(e) (1) An employer shall keep an up-to-date complete copy of
25the records referred to in subdivision (a) at each worksite, and shall
26make it available for inspection by any current employee or by the
27division upon an oral request. The worksite copy shall be in
28English, and, if the language spoken by the majority of the
29 employees at the worksite is not English, the worksite copy shall
30also be in the language spoken by the majority of the employees
31at the worksite.

32(2) Upon the operative date of this section, an employer shall
33provide a complete copy of the records referred to in subdivision
34(a) to each current employee, and, after the operative date of this
35section, an employer shall provide a complete copy of those records
36to each new employee at the time of hire. The copy of the records
37shall be in English or, if the language spoken by the majority of
38the employees at the worksite is not English, an employee who
39requests a copy of the records shall be provided with a copy in the
40language spoken by the majority of the employees at the worksite.
P9    1If the records referred to in subdivision (a) exceed a total of 50
2pages, the employer, in lieu of providing a copy as required under
3this paragraph, shall provide a complete summary that addresses
4the requirements referred to in subdivision (a), which shall be in
5English or, if the language spoken by the majority of the employees
6at the worksite is not English, an employee who requests a copy
7of the records shall be provided with a summary that is in the
8language spoken by the majority of the employees at the worksite.

9(3) An employer who receives a written request for a complete
10copy of the records referred to in subdivision (a) from a current
11employee, or his or her authorized representative, shall comply
12with the request as soon as practicable, but no later than five
13business days from the date a request pursuant to this paragraph
14is received. The copy of the records shall be provided to the current
15employee, or to his or her authorized representative, at no cost.
16An employer may designate the person to whom a request under
17this paragraph is to be made. A violation of this paragraph is an
18infraction. Impossibility of performance, not caused by or a result
19of a violation of law, shall be an affirmative defense for an
20employer in any action alleging a violation of this paragraph. For
21purposes of this paragraph, an “authorized representative” means
22a person authorized in writing by a current employee to receive a
23copy of the records referred to in subdivision (a).

24(4) A failure by an employer to comply with this subdivision,
25entitles an employee to recover a seven-hundred-fifty-dollar ($750)
26penalty from the employer for each violation.

27(f) (1) The standards board shall adopt a standard setting forth
28the employer’s duties under this section, on or before January 1,
291991, consistent with the requirements specified in subdivisions
30(a), (b), (c), (d), and (e). The standards board, in adopting the
31standard, shall include substantial compliance criteria for use in
32evaluating an employer’s injury prevention program. The board
33may adopt less stringent criteria for employers with few employees
34and for employers in industries with insignificant occupational
35safety or health hazards.

36(2) Notwithstanding subdivision (a), for employers with fewer
37than 20 employees who are in industries that are not on a
38designated list of high hazard industries and who have a workers’
39compensation experience modification rate of 1.1 or less, and for
40any employers with fewer than 20 employees who are in industries
P10   1that are on a designated list of low hazard industries, the board
2shall adopt a standard setting forth the employer’s duties under
3this section consistent with the requirements specified in
4subdivisions (a), (b), and (c) except that the standard shall only
5require written documentation to the extent of documenting the
6person or persons responsible for implementing the program
7pursuant to paragraph (1) of subdivision (a), keeping a record of
8periodic inspections pursuant to paragraph (2) of subdivision (a),
9and keeping a record of employee training pursuant to paragraph
10(4) of subdivision (a). To any extent beyond the specifications of
11this subdivision, the standard shall not require the employer to
12keep the records specified in subdivision (d).

13(3) (A) The division shall establish a list of high hazard
14industries using the methods prescribed in Section 6314.1 for
15identifying and targeting employers in high hazard industries. For
16purposes of this subdivision, the “designated list of high hazard
17industries” shall be the list established pursuant to this paragraph.

18(B) For the purpose of implementing this subdivision, the
19Department of Industrial Relations shall periodically review, and
20as necessary revise, the list.

21(4) For the purpose of implementing this subdivision, the
22Department of Industrial Relations shall also establish a list of low
23hazard industries, and shall periodically review, and as necessary
24revise, that list.

25(g) The standard adopted pursuant to subdivision (f) shall
26specifically permit employer and employee occupational safety
27and health committees to be included in the employer’s injury
28prevention program. The board shall establish criteria for use in
29evaluating employer and employee occupational safety and health
30committees. The criteria shall include minimum duties, including
31the following:

32(1) Review of the employer’s periodic, scheduled worksite
33inspections; investigation of causes of incidents resulting in injury,
34illness, or exposure to hazardous substances; and investigation of
35any alleged hazardous condition brought to the attention of any
36committee member. When determined necessary by the committee,
37the committee may conduct its own inspections and investigations.

38(2) (A) Upon request from the division, verification of
39abatement action taken by the employer as specified in division
40citations.

P11   1(B) If an employer’s occupational safety and health committee
2meets the criteria established by the board, it shall be presumed to
3be in substantial compliance with paragraph (5) of subdivision (a).

4(h) The division shall adopt regulations specifying the
5procedures for selecting employee representatives for
6employer-employee occupational health and safety committees
7when these procedures are not specified in an applicable collective
8bargaining agreement. No employee or employee organization
9shall be held liable for any act or omission in connection with a
10health and safety committee.

11(i) The employer’s injury prevention program, as required by
12this section, shall cover all of the employer’s employees and all
13other workers who the employer controls or directs and directly
14supervises on the job to the extent these workers are exposed to
15worksite and job assignment specific hazards. Nothing in this
16subdivision shall affect the obligations of a contractor or other
17employer that controls or directs and directly supervises its own
18employees on the job.

19(j) When a contractor supplies its employee to a state agency
20employer on a temporary basis, the state agency employer may
21assess a fee upon the contractor to reimburse the state agency for
22the additional costs, if any, of including the contract employee
23within the state agency’s injury prevention program.

24(k) (1) The division shall prepare a Model Injury and Illness
25Prevention Program for Non-High-Hazard Employment, and shall
26make copies of the model program prepared pursuant to this
27subdivision available to employers, upon request, for posting in
28the workplace. An employer who adopts and implements the model
29program prepared by the division pursuant to this paragraph in
30good faith shall not be assessed a civil penalty for the first citation
31for a violation of this section issued after the employer’s adoption
32and implementation of the model program.

33(2) For purposes of this subdivision, the division shall establish
34a list of non-high-hazard industries in California. These industries,
35identified by their Standard Industrial Classification Codes, as
36published by the United States Office of Management and Budget
37in the Manual of Standard Industrial Classification Codes, 1987
38Edition, are apparel and accessory stores (Code 56), eating and
39drinking places (Code 58), miscellaneous retail (Code 59), finance,
40insurance, and real estate (Codes 60-67), personal services (Code
P12   172), business services (Code 73), motion pictures (Code 78) except
2motion picture production and allied services (Code 781), legal
3services (Code 81), educational services (Code 82), social services
4(Code 83), museums, art galleries, and botanical and zoological
5gardens (Code 84), membership organizations (Code 86),
6engineering, accounting, research, management, and related
7services (Code 87), private households (Code 88), and
8miscellaneous services (Code 89). To further identify industries
9that may be included on the list, the division shall also consider
10data from a rating organization, as defined in Section 11750.1 of
11the Insurance Code, and all other appropriate information. The list
12shall be established by June 30, 1994, and shall be reviewed, and
13as necessary revised, biennially.

14(3) The division shall prepare a Model Injury and Illness
15Prevention Program for Employers in Industries with Intermittent
16Employment, and shall determine which industries have historically
17utilized seasonal or intermittent employees. An employer in an
18industry determined by the division to have historically utilized
19seasonal or intermittent employees shall be deemed to have
20complied with the requirements of subdivision (a) with respect to
21a written injury prevention program if the employer adopts the
22model program prepared by the division pursuant to this paragraph
23and complies with any instructions relating thereto.

24(l) With respect to any county, city, city and county, or district,
25or any public or quasi-public corporation or public agency therein,
26including any public entity, other than a state agency, that is a
27member of, or created by, a joint powers agreement, subdivision
28(d) shall not apply.

29(m) Every workers’ compensation insurer shall conduct a
30review, including a written report as specified below, of the injury
31and illness prevention program (IIPP) of each of its insureds with
32an experience modification of 2.0 or greater within six months of
33the commencement of the initial insurance policy term. The review
34shall determine whether the insured has implemented all of the
35required components of the IIPP, and evaluate their effectiveness.
36The training component of the IIPP shall be evaluated to determine
37whether training is provided to line employees, supervisors, and
38upper level management, and effectively imparts the information
39and skills each of these groups needs to ensure that all of the
40insured’s specific health and safety issues are fully addressed by
P13   1the insured. The reviewer shall prepare a detailed written report
2specifying the findings of the review and all recommended changes
3deemed necessary to make the IIPP effective. The reviewer shall
4be or work under the direction of a licensed California professional
5engineer, certified safety professional, or a certified industrial
6hygienist.

7(n) This section shall become operative on July 1, 2017.

8

SEC. 3.  

No reimbursement is required by this act pursuant to
9Section 6 of Article XIII B of the California Constitution because
10the only costs that may be incurred by a local agency or school
11district will be incurred because this act creates a new crime or
12infraction, eliminates a crime or infraction, or changes the penalty
13for a crime or infraction, within the meaning of Section 17556 of
14the Government Code, or changes the definition of a crime within
15the meaning of Section 6 of Article XIII B of the California
16Constitution.



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