BILL ANALYSIS Ó
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: AB 2895 Hearing Date: June 22,
2016
-----------------------------------------------------------------
|Author: |Roger Hernández |
|-----------+-----------------------------------------------------|
|Version: |June 14, 2016 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|Alma Perez-Schwab |
| | |
-----------------------------------------------------------------
Subject: Employee safety: injury prevention programs
KEY ISSUES
Should the Legislature require employers to provide their
employees with access to the businesses written Injury and
Illness Prevention Program (IIPP) at the worksite?
Should the Legislature require that the worksite copy be in
English and in the language spoken by the majority of the
employees at the worksite?
Should an employer failure to provide access to the IIPP be
classified as an infraction and entitle employees denied access
to injunctive relief?
ANALYSIS
Existing law:
1. Requires all employers to provide a safe and healthy
workplace, and empowers the Division of Occupational Safety
and Health (DOSH, also known as Cal/OSHA) to issue
AB 2895 (Roger Hernández) Page 2
of ?
citations if employees are exposed to workplace hazards, as
specified.
2. Requires employers, with some exceptions, to establish,
implement and maintain an effective Injury and Illness
Prevention Program (IIPP).
3. Provides that the IIPP shall be written, except as
specified, and shall include, among other things, the
following elements (Labor Code §6401.7):
a. Identification of the person or persons
responsible for implementing the program.
b. A system for identifying and evaluating
workplace hazards, including scheduled periodic
inspections to identify unsafe conditions and work
practices.
c. The employer's methods and procedures for
correcting unsafe or unhealthy conditions and work
practices in a timely manner.
d. An occupational health and safety training
program designed to instruct employees in general safe
and healthy work practices and to provide specific
instruction with respect to hazards specific to each
employee's job assignment.
e. The employer's system for communicating with
employees on occupational health and safety matters,
including provisions designed to encourage employees
to inform the employer of hazards at the worksite
without fear of reprisal.
f. The employer's system for ensuring that
employees comply with safe and healthy work practices,
which may include disciplinary action.
This Bill would require employers to provide employees with
access to the written Injury and Illness Prevention Programs, as
specified.
Specifically, this bill would:
1. Require employers to keep an up-to-date complete copy of
the written IIPP at each worksite, and make it available
for inspection by any current employee or by the Division
of Occupational Safety and Health (Cal/OSHA) upon an oral
request.
AB 2895 (Roger Hernández) Page 3
of ?
2. Require that the worksite copy be in English, and, if
the language spoken by the majority of the employees at the
worksite is not English, the worksite copy shall also be in
the language spoken by the majority of the employees at the
worksite.
3. Require employers to inform each current employee and
each new employee at the time of hire, in a language
understood by the employee, of the following:
a. That the employer has a complete copy of the
written IIPP at the worksite;
b. That the employee has a right to inspect the
IIPP;
c. That the employee or his/her authorized
representative has a right to submit a written request
to receive a complete copy of the IIPP.
4. Require employers who receive a written request for a
copy of the IIPP from a current employee, or his/her
authorized representative, to comply with the request as
soon as practicable, but no later than five business days
from the date of the request and to provide it at no cost
to the employee or authorized representative.
5. Provide that failure by an employer to comply with a
written request for a copy of the IIPP is an infraction.
6. Provide that an employee is entitled to injunctive
relief if an employer has not timely responded to a written
request and has failed to comply with a subsequent written
demand from the employee, provided that the Division of
Occupational Safety and Health has not already cited the
employer for failure to comply.
7. Provides that these requirements shall be effective on
July 1, 2017.
COMMENTS
1. Background on Injury and Illness Prevention Programs (IIPPs):
An injury or illness prevention program (IIPP) is a basic
written workplace safety program. California law requires
AB 2895 (Roger Hernández) Page 4
of ?
every employer to develop and implement an effective IIPP. The
specific elements of a written IIPP are set forth in the Labor
Code and the Cal/OSHA regulations and include the following:
Responsibility
Compliance
Communication
Hazard Assessment
Accident/Exposure Investigation
Hazard Correction
Training and Instruction
Recordkeeping
According to Cal/OSHA, in order to be effective, an IIPP must
fully involve all employees, supervisors, and management,
identify the specific workplace hazards employees are exposed
to, correct identified hazards in an appropriate and timely
manner, and provide effective training. Additionally,
employers must regularly review and update the IIPP in order
for it to remain effective.
The following three sample model IIPPs are available to
employers from Cal/OSHA:
CS 1A: Workplace Injury and Illness Prevention Model
Program for High Hazard Employers
CS 1B: Workplace Injury and Illness Prevention Model
Program for Non-High Hazard Employers
CS 1C: Workplace Injury and Illness Prevention Model
Program for Employers with Intermittent Workers
There are no requirements to use these model programs.
However, any employer in an industry which has been determined
by Cal/ OSHA as being non-high hazard and who adopts, posts,
and implements the Workplace Injury and Illness Prevention
Model Program for Non-High Hazard Employers in good faith is
not subject to assessment of a civil penalty for a first
AB 2895 (Roger Hernández) Page 5
of ?
violation of the requirement to maintain an IIPP.
2. Need for this bill?
According to a 2012 Occupational Safety and Health
Administration white paper, "The literature on injury and
illness prevention programs also includes numerous studies
that attempt to identify the critical success features
associated with superior health and safety performance.
Gallagher (2001) concludes that management commitment and
employee involvement are the keys to program success:
"[R]ecurring findings across these studies were the critical
role played by senior managers in successful health and safety
management systems, and the importance of effective
communication, employee involvement and consultation." (Injury
and Illness Prevention Programs, OSHA, U.S. Department of
Labor)
In November 19, 2015, the Assembly Labor and Employment
Committee conducted an informational hearing entitled, "Latino
Worker Health and Safety Issues: Exploring Causes and
Potential Solutions." Among other things, the hearing sought
to explore some of the challenges experienced by Latino
workers in greater detail, and to identify policy and other
recommendations to address these concerns and improve
workplace health and safety for workers. Several witnesses at
the hearing testified that many Latino workers, particularly
immigrants, lack a basic understanding of workplace health and
safety issues and particular hazards at their place of
employment.
Injury and Illness Prevention Programs have been proven to
help businesses improve their compliance with existing laws
and regulations, decrease the incidence of workplace injuries
and illnesses, reduce costs (including reductions in workers'
compensation premiums) and enhance their overall business
operations. In an effort to enhance California's existing IIPP
requirements and to address the proven benefit of employee
involvement in the success of IIPP implementation, this bill
would require employers to provide employees with access to
the written Injury and Illness Prevention Programs at the
AB 2895 (Roger Hernández) Page 6
of ?
worksite in English and in the language spoken by the majority
of the employees.
3. Proponent Arguments :
According to the author, California's Division of Occupational
Safety and Health has been aggressive and pro-active in
helping employers understand and comply with existing
requirements regarding the IIPPs. Among other things, Cal/OSHA
has engaged in extensive outreach and training of employers,
including offering free consultations, creating a manual for
employers, as well as on-line templates ("E-Tool") that allow
employers to quickly fashion their own IIPPs. Unfortunately,
the author notes, there is still a high number of injury and
deaths, especially among low-wage Latino immigrant workers,
due in part to a lack of knowledge and understanding of
occupational safety due to language barriers.
Proponents argue that current IIPP law does not provide
non-English speaking workers with a meaningful 'right to know'
hazards at any given worksite because employers are not even
required to have IIPPs at worksites, and there is no
requirement that the IIPP be in any other language even if a
majority of the workers speak a language other than English.
The sponsors of the bill, the California Rural Legal
Assistance Foundation, this bill addresses several of the
important ways that California's IIPP law has failed to keep
pace with the changing realities of the workplace--and
particularly with respect to the large number of workers who
speak languages other than English--by giving them access to
potentially key information at the work site and when they are
hired. The sponsor notes that this bill goes into effect on
July 1, 2017, which will give both employers and Cal/OSHA
ample time to come into compliance with the modest new
requirements established by the bill.
Finally, proponents not that the injunctive relief provisions
in the bill are drawn from two existing statutes which provide
for a worker's right to seek injunctive relief to compel
compliance if his/her employer fails to: 1) provide copies of
itemized pay stubs, and 2) provide copies of personnel
records. They note that neither provision has been associated
with abuse by workers.
4. Opponent Arguments :
AB 2895 (Roger Hernández) Page 7
of ?
Opponents, including the California Chamber of Commerce, are
opposed to this this bill because they believe it creates an
unprecedented departure from exclusive Cal/OSHA enforcement of
safety regulations, open ended liability to employers for a
new crime, plus exposure to injunctive action for a new
paperwork violation that presents no risk of injury or harm to
employees. Furthermore, they argue that a need for the bill
has not been demonstrated. Opponents also state that an
electronic or written copy of the program available upon
request should suffice whether or not the copy is in written
form at the location.
According to opponents, the bill creates a new requirement on
employers to inform employees of this new right to inspect the
IIPP that could easily and most appropriately be placed into
existing opportunities to inform new employees regarding the
IIPP. Furthermore, they argue that the program is not required
to be written in multiple languages because its intent is to
provide Cal/OSHA and the employer to review and ascertain
whether or not the program has been properly implemented in
the workplace. They state that its purpose is not to inform
the employee of its content. Programs and training derived
from the IIPP are required to be in languages understood by
the employees.
Furthermore, opponents argue that the provisions of this bill
are overly burdensome and punitive, particularly in light of
the fact that this information will be of no use to employees
because it consists primarily of the operational and
logistical details of the employer's plan. A failure of the
employer to provide the written copy of the program upon
written request would be subject to Cal/OSHA enforcement and a
citation, or injunctive relief which requires the employer to
appear in court which is unprecedented for enforcement of a
Cal/OSHA violation. According to opponents, creating a new
enforcement scheme to provide employer's documentation to
employees and their representative for a violation that does
not create a hazard or harm to the employee, nor has a
demonstrated need sets a public policy precedent which is
unnecessary.
SUPPORT
AB 2895 (Roger Hernández) Page 8
of ?
California Rural Legal Assistance Foundation (Sponsor)
California Labor Federation
Centro Legal de la Raza
National Employment Law Project
Service Employees International Union
Southern California Coalition for Occupational Safety and Health
United Farm Workers
WORKSAFE
OPPOSITION
American Petroleum and Convenience Store Association
Associated Builders and Contractors of California
Associated General Contractors
California Apartment Association
California Association of Health Services at Home
California Attractions and Parks Association
California Chamber of Commerce
California Construction and Industrial Materials Association
California Cotton Growers Association
California Cotton Ginners Association
California Farm Bureau Federation
California Framing Contractors Association
California Grocers Association
California League of Food Processors
California Manufacturers & Technology Association
California Professional Association of Specialty Contractors
California Retailers Association
Family Business Association of California
National Federation of Independent Business
Public Agency Safety Management Association
Residential Contractors Association
Southwest California Legislative Council
Walter & Prince, LLP
Western Agricultural Processors Association
Western Carwash Association
Western Growers Association
-- END --
AB 2895 (Roger Hernández) Page 9
of ?