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
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          |Author:    |Roger Hernández                                      |
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          |Version:   |June 14, 2016                                        |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|Alma Perez-Schwab                                    |
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               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  








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               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.  







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             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  







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            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  







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            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  







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            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  :







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            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
          







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          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 --
          









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