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 ?