AB 2895, as amended, Roger Hernández. 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 the written injury prevention program at each worksite and to make it available to any employee upon oral request. The bill would also require an employer to inform each employee and each new hire of the availability of, and of the employee’s rights with respect to inspecting and receiving, a copy of the written injury prevention program, as specified.
The bill also would require an employer who receives a written request for a copy of the written injury prevention program from a current employee, or his or her authorized representative, to comply within 5 business days and to provide the copy at no cost. The bill would make a violation of this requirement an infraction. The bill would entitle an employee tobegin delete recover a penalty in a civil action for failure byend deletebegin insert injunctive relief ifend insert an employerbegin insert
has not timely responded to a written request for a complete copy of the written injury prevention program and end insertbegin inserthas failedend insert to comply with the employee’sbegin insert subsequentend insert written demand for compliancebegin delete with this requirementend delete unless the division has cited the employer for failing to comply before the employee undertakesbegin delete to recover the penalty.end deletebegin insert the action seeking injunctive relief.end insert
Because this bill creates a new crime, 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:
Section 6401.7 of the Labor Code is amended to
2read:
(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.
P3 1(3) The employer’s methods and procedures for correcting
2unsafe or unhealthy
conditions and work practices in a timely
3manner.
4(4) An occupational health and safety training program designed
5to instruct employees in general safe and healthy work practices
6and to provide specific instruction with respect to hazards specific
7to each employee’s job assignment.
8(5) The employer’s system for communicating with employees
9on occupational health and safety matters, including provisions
10designed to encourage employees to inform the employer of
11hazards at the worksite without fear of reprisal.
12(6) The employer’s system for ensuring that employees comply
13with safe and healthy work practices, which may include
14disciplinary action.
15(b) The
employer shall correct unsafe and unhealthy conditions
16and work practices in a timely manner based on the severity of the
17hazard.
18(c) The employer shall train all employees when the training
19program is first established, all new employees, and all employees
20given a new job assignment, and shall train employees whenever
21new substances, processes, procedures, or equipment are introduced
22to the workplace and represent a new hazard, and whenever the
23employer receives notification of a new or previously unrecognized
24hazard. An employer in the construction industry who is required
25to be licensed under Chapter 9 (commencing with Section 7000)
26of Division 3 of the Business and Professions Code may use
27employee training provided to the employer’s employees under a
28construction industry occupational safety and health training
29program approved
by the division to comply with the requirements
30of subdivision (a) relating to employee training, and shall only be
31required to provide training on hazards specific to an employee’s
32job duties.
33(d) The employer shall keep appropriate records of steps taken
34to implement and maintain the program. An employer in the
35construction industry who is required to be licensed under Chapter
369 (commencing with Section 7000) of Division 3 of the Business
37and Professions Code may use records relating to employee training
38provided to the employer in connection with an occupational safety
39and health training program approved by the division to comply
40with this subdivision, and shall only be required to keep records
P4 1of those steps taken to implement and maintain the program with
2respect to hazards specific to an employee’s job duties.
3(e) (1) The standards board shall adopt a standard setting forth
4the employer’s duties under this section, on or before January 1,
51991, consistent with the requirements specified in subdivisions
6(a), (b), (c), and (d). The standards board, in adopting the standard,
7shall include substantial compliance criteria for use in evaluating
8an employer’s injury prevention program. The board may adopt
9less stringent criteria for employers with few employees and for
10employers in industries with insignificant occupational safety or
11health hazards.
12(2) Notwithstanding subdivision (a), for employers with fewer
13than 20 employees who are in industries that are not on a
14designated list of high hazard industries and who have a workers’
15compensation experience modification rate
of 1.1 or less, and for
16any employers with fewer than 20 employees who are in industries
17that are on a designated list of low hazard industries, the board
18shall adopt a standard setting forth the employer’s duties under
19this section consistent with the requirements specified in
20subdivisions (a), (b), and (c), except that the standard shall only
21require written documentation to the extent of documenting the
22person or persons responsible for implementing the program
23
pursuant to paragraph (1) of subdivision (a), keeping a record of
24periodic inspections pursuant to paragraph (2) of subdivision (a),
25and keeping a record of employee training pursuant to paragraph
26(4) of subdivision (a). To any extent beyond the specifications of
27this subdivision, the standard shall not require the employer to
28keep the records specified in subdivision (d).
29(3) (A) The division shall establish a list of high hazard
30industries using the methods prescribed in Section 6314.1 for
31identifying and targeting employers in high hazard industries. For
32purposes of this subdivision, the “designated list of high hazard
33industries” shall be the list established pursuant to this paragraph.
34(B) For the purpose of implementing this subdivision, the
35Department
of Industrial Relations shall periodically review, and
36as necessary revise, the list.
37(4) For the purpose of implementing this subdivision, the
38Department of Industrial Relations shall also establish a list of low
39hazard industries, and shall periodically review, and as necessary
40revise, that list.
P5 1(f) The standard adopted pursuant to subdivision (e) shall
2specifically permit employer and employee occupational safety
3and health committees to be included in the employer’s injury
4prevention program. The board shall establish criteria for use in
5evaluating employer and employee occupational safety and health
6committees. The criteria shall include minimum duties, including
7the following:
8(1) Review of the employer’s
periodic, scheduled worksite
9inspections; investigation of causes of incidents resulting in injury,
10illness, or exposure to hazardous substances; and investigation of
11any alleged hazardous condition brought to the attention of any
12committee member. When determined necessary by the committee,
13the committee may conduct its own inspections and investigations.
14(2) (A) Upon request from the division, verification of
15abatement action taken by the employer as specified in division
16citations.
17(B) If an employer’s occupational safety and health committee
18meets the criteria established by the board, it shall be presumed to
19be in substantial compliance with paragraph (5) of subdivision (a).
20(g) The division shall
adopt regulations specifying the
21procedures for selecting employee representatives for
22employer-employee occupational health and safety committees
23when these procedures are not specified in an applicable collective
24bargaining agreement. No employee or employee organization
25shall be held liable for any act or omission in connection with a
26health and safety committee.
27(h) The employer’s injury prevention program, as required by
28this section, shall cover all of the employer’s employees and all
29other workers who the employer controls or directs and directly
30supervises on the job to the extent these workers are exposed to
31worksite and job assignment specific hazards. Nothing in this
32subdivision shall affect the obligations of a contractor or other
33employer that controls or directs and directly supervises its own
34employees on the job.
35(i) When a contractor supplies its employee to a state agency
36employer on a temporary basis, the state agency employer may
37assess a fee upon the contractor to reimburse the state agency for
38the additional costs, if any, of including the contract employee
39within the state agency’s injury prevention program.
P6 1(j) (1) The division shall prepare a Model Injury and Illness
2Prevention Program for Non-High-Hazard Employment, and shall
3make copies of the model program prepared pursuant to this
4subdivision available to employers, upon request, for posting in
5the workplace. An employer who adopts and implements the model
6program prepared by the division pursuant to this paragraph in
7good faith shall not be assessed a civil penalty for the first citation
8for a violation
of this section issued after the employer’s adoption
9and implementation of the model program.
10(2) For purposes of this subdivision, the division shall establish
11a list of non-high-hazard industries in California. These industries,
12identified by their Standard Industrial Classification Codes, as
13published by the United States Office of Management and Budget
14in the Manual of Standard Industrial Classification Codes, 1987
15Edition, are apparel and accessory stores (Code 56), eating and
16drinking places (Code 58), miscellaneous retail (Code 59), finance,
17insurance, and real estate (Codes 60-67), personal services (Code
1872), business services (Code 73), motion pictures (Code 78) except
19motion picture production and allied services (Code 781), legal
20services (Code 81), educational services (Code 82), social services
21(Code 83), museums, art galleries, and
botanical and zoological
22gardens (Code 84), membership organizations (Code 86),
23engineering, accounting, research, management, and related
24services (Code 87), private households (Code 88), and
25miscellaneous services (Code 89). To further identify industries
26that may be included on the list, the division shall also consider
27data from a rating organization, as defined in Section 11750.1 of
28the Insurance Code, and all other appropriate information. The list
29shall be established by June 30, 1994, and shall be reviewed, and
30as necessary revised, biennially.
31(3) The division shall prepare a Model Injury and Illness
32Prevention Program for Employers in Industries with Intermittent
33Employment, and shall determine which industries have historically
34utilized seasonal or intermittent employees. An employer in an
35industry determined by the
division to have historically utilized
36seasonal or intermittent employees shall be deemed to have
37complied with the requirements of subdivision (a) with respect to
38a written injury prevention program if the employer adopts the
39model program prepared by the division pursuant to this paragraph
40and complies with any instructions relating thereto.
P7 1(k) With respect to any county, city, city and county, or district,
2or any public or quasi-public corporation or public agency therein,
3including any public entity, other than a state agency, that is a
4member of, or created by, a joint powers agreement, subdivision
5(d) shall not apply.
6(l) Every workers’ compensation insurer shall conduct a review,
7including a written report as specified below, of the injury and
8illness prevention
program (IIPP) of each of its insureds with an
9experience modification of 2.0 or greater within six months of the
10commencement of the initial insurance policy term. The review
11shall determine whether the insured has implemented all of the
12required components of the IIPP, and evaluate their effectiveness.
13The training component of the IIPP shall be evaluated to determine
14whether training is provided to line employees, supervisors, and
15upper level management, and effectively imparts the information
16and skills each of these groups needs to ensure that all of the
17insured’s specific health and safety issues are fully addressed by
18the insured. The reviewer shall prepare a detailed written report
19specifying the findings of the review and all recommended changes
20deemed necessary to make the IIPP effective. The reviewer shall
21be or work under the direction of a licensed California professional
22engineer,
certified safety professional, or a certified industrial
23hygienist.
24(m) This section shall remain in effect only until July 1, 2017,
25and as of that date is repealed.
Section 6401.7 is added to the Labor Code, to read:
(a) Every employer shall establish, implement, and
28maintain an effective injury prevention program. The program
29shall be written, except as provided in subdivision (f), and shall
30include, but not be limited to, the following elements:
31(1) Identification of the person or persons responsible for
32implementing the program.
33(2) The employer’s system for identifying and evaluating
34workplace hazards, including scheduled periodic inspections to
35identify unsafe conditions and work practices.
36(3) The employer’s methods and procedures for correcting
37unsafe
or unhealthy conditions and work practices in a timely
38manner.
39(4) An occupational health and safety training program designed
40to instruct employees in general safe and healthy work practices
P8 1and to provide specific instruction with respect to hazards specific
2to each employee’s job assignment.
3(5) The employer’s system for communicating with employees
4on occupational health and safety matters, including provisions
5designed to encourage employees to inform the employer of
6hazards at the worksite without fear of reprisal.
7(6) The employer’s system for ensuring that employees comply
8with safe and healthy work practices, which may include
9disciplinary action.
10(b) The employer shall correct unsafe and unhealthy conditions
11and work practices in a timely manner based on the severity of the
12hazard.
13(c) The employer shall train all employees when the training
14program is first established, all new employees, and all employees
15given a new job assignment, and shall train employees whenever
16new substances, processes, procedures, or equipment are introduced
17to the workplace and represent a new hazard, and whenever the
18employer receives notification of a new or previously unrecognized
19hazard. An employer in the construction industry who is required
20to be licensed under Chapter 9 (commencing with Section 7000)
21of Division 3 of the Business and Professions Code may use
22employee training provided to the employer’s employees under a
23construction industry occupational safety and health training
24program
approved by the division to comply with the requirements
25of subdivision (a) relating to employee training, and shall only be
26required to provide training on hazards specific to an employee’s
27job duties.
28(d) The employer shall keep appropriate records of steps taken
29to implement and maintain the program. An employer in the
30construction industry who is required to be licensed under Chapter
319 (commencing with Section 7000) of Division 3 of the Business
32and Professions Code may use records relating to employee training
33provided to the employer in connection with an occupational safety
34and health training program approved by the division to comply
35with this subdivision, and shall only be required to keep records
36of those steps taken to implement and maintain the program with
37respect to hazards specific to an employee’s job duties.
38(e) (1) An employer shall keep an up-to-date complete copy of
39the written injury prevention program referred to in subdivision
40(a) at each worksite, and shall make it available for inspection by
P9 1any current employee or by the division upon an oral request. The
2worksite copy shall be in English, and, if the language spoken by
3the majority of the employees at the worksite is not English, the
4worksite copy shall also be in the language spoken by the majority
5of the employees at the worksite.
6(2) Commencing July 1, 2017, an employer shall
inform each
7current employee, and, after the operative date of this section, each
8new employee at the time of hire, in a language understood by the
9employee, that the employer has a complete copy of the written
10injury prevention program referred to in subdivision (a) at the
11worksite; that the employee has a right to inspect it; and that the
12employee or his or her authorized representative has a right to
13submit a written request to receive a complete copy of the written
14injury prevention program referred to in subdivision (a) within
15five business days at no charge.
16(3) An employer who receives a written request for a complete
17copy of the written injury prevention program referred to in
18subdivision (a) from a current employee, or his or her authorized
19representative, shall comply with the request as soon as practicable,
20but
no later than five business days from the date a request pursuant
21to this paragraph is received. The copy of the written injury
22prevention program shall be provided to the current employee, or
23to his or her authorized representative, at no cost. An employer
24may designate the person to whom a request under this paragraph
25is to be made. A violation of this paragraph is an infraction.
26Impossibility of performance, not caused by or a result of a
27violation of law, shall be an affirmative defense for an employer
28
in any action alleging a violation of this paragraph. For purposes
29of this paragraph, an “authorized representative” means a person
30authorized in writing by a current employee to receive a copy of
31the written injury prevention program referred to in subdivision
32(a).
33(4) begin deleteA failure by an employer end deletebegin insertAn employee is entitled to
34injunctive relief if an employer has not timely responded to a
35written request for a complete copy of the written injury prevention
36program pursuant to paragraph (3) and hasend insertbegin insert failed end insertto comply with
37abegin insert
subsequentend insert written demand from the employee that the employer
38comply with paragraphbegin delete (3)end delete
begin delete entitles an employee to recover in a
39civil action a seven-hundred-fifty-dollar ($750) penalty from the
40
employer,end delete
P10 1for a failure to comply with paragraph (3) prior to the employee
2undertakingbegin delete a civilend deletebegin insert theend insert actionbegin delete to recover the penalty.end deletebegin insert seeking
3injunctive relief.end insert
4(f) (1) The standards board shall adopt a standard setting forth
5the employer’s duties under this section, on or before January 1,
61991, consistent with the requirements specified
in subdivisions
7(a), (b), (c), and (d). The standards board, in adopting the standard,
8shall include substantial compliance criteria for use in evaluating
9an employer’s injury prevention program. The board may adopt
10less stringent criteria for employers with few employees and for
11employers in industries with insignificant occupational safety or
12health hazards.
13(2) Notwithstanding subdivision (a), for employers with fewer
14than 20 employees who are in industries that are not on a
15designated list of high hazard industries and who have a workers’
16compensation experience modification rate of 1.1 or less, and for
17any employers with fewer than 20 employees who are in industries
18that are on a designated list of low hazard industries, the board
19shall adopt a standard setting forth the employer’s duties under
20this section consistent with the
requirements specified in
21subdivisions (a), (b), and (c), except that the standard shall only
22require written documentation to the extent of documenting the
23person or persons responsible for implementing the program
24pursuant to paragraph (1) of subdivision (a), keeping a record of
25periodic inspections pursuant to paragraph (2) of subdivision (a),
26and keeping a record of employee training pursuant to paragraph
27(4) of subdivision (a). To any extent beyond the specifications of
28this subdivision, the standard shall not require the employer to
29keep the records specified in subdivision (d).
30(3) (A) The division shall establish a list of high hazard
31industries using the methods prescribed in Section 6314.1 for
32identifying and targeting employers in high hazard industries. For
33purposes of this subdivision, the “designated list
of high hazard
34industries” shall be the list established pursuant to this paragraph.
35(B) For the purpose of implementing this subdivision, the
36Department of Industrial Relations shall periodically review, and
37as necessary revise, the list.
38(4) For the purpose of implementing this subdivision, the
39Department of Industrial Relations shall also establish a list of low
P11 1hazard industries, and shall periodically review, and as necessary
2revise, that list.
3(g) The standard adopted pursuant to subdivision (f) shall
4specifically permit employer and employee occupational safety
5and health committees to be included in the employer’s injury
6prevention program. The board shall establish criteria for use in
7evaluating employer and
employee occupational safety and health
8committees. The criteria shall include minimum duties, including
9the following:
10(1) Review of the employer’s periodic, scheduled worksite
11inspections; investigation of causes of incidents resulting in injury,
12illness, or exposure to hazardous substances; and investigation of
13any alleged hazardous condition brought to the attention of any
14committee member. When determined necessary by the committee,
15the committee may conduct its own inspections and investigations.
16(2) (A) Upon request from the division, verification of
17abatement action taken by the employer as specified in division
18citations.
19(B) If an employer’s occupational safety and health committee
20meets
the criteria established by the board, it shall be presumed to
21be in substantial compliance with paragraph (5) of subdivision (a).
22(h) The division shall adopt regulations specifying the
23procedures for selecting employee representatives for
24employer-employee occupational health and safety committees
25when these procedures are not specified in an applicable collective
26bargaining agreement. No employee or employee organization
27shall be held liable for any act or omission in connection with a
28health and safety committee.
29(i) The employer’s injury prevention program, as required by
30this section, shall cover all of the employer’s employees and all
31other workers who the employer controls or directs and directly
32supervises on the job to the extent these workers are exposed to
33worksite
and job assignment specific hazards. Nothing in this
34subdivision shall affect the obligations of a contractor or other
35employer that controls or directs and directly supervises its own
36
employees on the job.
37(j) When a contractor supplies its employee to a state agency
38employer on a temporary basis, the state agency employer may
39assess a fee upon the contractor to reimburse the state agency for
P12 1the additional costs, if any, of including the contract employee
2within the state agency’s injury prevention program.
3(k) (1) The division shall prepare a Model Injury and Illness
4Prevention Program for Non-High-Hazard Employment, and shall
5make copies of the model program prepared pursuant to this
6subdivision available to employers, upon request, for posting in
7the workplace. An employer who adopts and implements the model
8program prepared by the division pursuant to this paragraph in
9good faith shall not be assessed a civil penalty for
the first citation
10for a violation of this section issued after the employer’s adoption
11and implementation of the model program.
12(2) For purposes of this subdivision, the division shall establish
13a list of non-high-hazard industries in California. These industries,
14identified by their Standard Industrial Classification Codes, as
15published by the United States Office of Management and Budget
16in the Manual of Standard Industrial Classification Codes, 1987
17Edition, are apparel and accessory stores (Code 56), eating and
18drinking places (Code 58), miscellaneous retail (Code 59), finance,
19insurance, and real estate (Codes 60-67), personal services (Code
2072), business services (Code 73), motion pictures (Code 78) except
21motion picture production and allied services (Code 781), legal
22services (Code 81), educational services (Code 82), social services
23
(Code 83), museums, art galleries, and botanical and zoological
24gardens (Code 84), membership organizations (Code 86),
25engineering, accounting, research, management, and related
26services (Code 87), private households (Code 88), and
27miscellaneous services (Code 89). To further identify industries
28that may be included on the list, the division shall also consider
29data from a rating organization, as defined in Section 11750.1 of
30the Insurance Code, and all other appropriate information. The list
31shall be established by June 30, 1994, and shall be reviewed, and
32as necessary revised, biennially.
33(3) The division shall prepare a Model Injury and Illness
34Prevention Program for Employers in Industries with Intermittent
35Employment, and shall determine which industries have historically
36utilized seasonal or intermittent employees. An employer
in an
37industry determined by the division to have historically utilized
38seasonal or intermittent employees shall be deemed to have
39complied with the requirements of subdivision (a) with respect to
40a written injury prevention program if the employer adopts the
P13 1model program prepared by the division pursuant to this paragraph
2and complies with any instructions relating thereto.
3(l) With respect to any county, city, city and county, or district,
4or any public or quasi-public corporation or public agency therein,
5including any public entity, other than a state agency, that is a
6member of, or created by, a joint powers agreement, subdivision
7(d) shall not apply.
8(m) Every workers’ compensation insurer shall conduct a
9review, including a written report as specified below, of the injury
10and
illness prevention program (IIPP) of each of its insureds with
11an experience modification of 2.0 or greater within six months of
12the commencement of the initial insurance policy term. The review
13shall determine whether the insured has implemented all of the
14required components of the IIPP, and evaluate their effectiveness.
15The training component of the IIPP shall be evaluated to determine
16whether training is provided to line employees, supervisors, and
17upper level management, and effectively imparts the information
18and skills each of these groups needs to ensure that all of the
19insured’s specific health and safety issues are fully addressed by
20the insured. The reviewer shall prepare a detailed written report
21specifying the findings of the review and all recommended changes
22deemed necessary to make the IIPP effective. The reviewer shall
23be or work under the direction of a licensed California professional
24engineer,
certified safety professional, or a certified industrial
25hygienist.
26(n) This section shall become operative on July 1, 2017.
No reimbursement is required by this act pursuant to
28Section 6 of Article XIII B of the California Constitution because
29the only costs that may be incurred by a local agency or school
30district will be incurred because this act creates a new crime or
31infraction, eliminates a crime or infraction, or changes the penalty
32for a crime or infraction, within the meaning of Section 17556 of
33the Government Code, or changes the definition of a crime within
34the meaning of Section 6 of Article XIII B of the California
35Constitution.
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95