BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 2895| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- THIRD READING Bill No: AB 2895 Author: Roger Hernández (D) Amended: 8/2/16 in Senate Vote: 21 SENATE LABOR & IND. REL. COMMITTEE: 4-1, 6/22/16 AYES: Mendoza, Jackson, Leno, Mitchell NOES: Stone SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8 ASSEMBLY FLOOR: 44-30, 6/2/16 - See last page for vote SUBJECT: Employee safety: injury prevention programs SOURCE: California Rural Legal Assistance Foundation DIGEST: This bill requires, commencing July 1, 2017, an employer to keep a complete, updated copy of the currently required written injury prevention program at each worksite with three or more employees and to make it available for inspection by any employee or by the Division of Occupational Safety and Health upon oral request. This bill also requires 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. Additionally, an employer that receives a written request for a copy of the injury prevention program must comply within a specified timeframe or entitle the employee to injunctive relief, as specified. AB 2895 Page 2 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 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. AB 2895 Page 3 f) The employer's system for ensuring that employees comply with safe and healthy work practices, which may include disciplinary action. This bill: 1)Requires employers to keep an up-to-date complete copy of the written IIPP at each worksite with three or more employees, and make it available for inspection by any current employee or by DOSH (Cal/OSHA) upon an oral request. 2)Requires that the worksite copy be in English, and, if the language spoken by the majority of the employees is not English, the worksite copy shall also be in the language spoken by the majority of the employees at the worksite. 3)Requires 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; and 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)Requires 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. 5)Provides 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 DOSH has not already cited the employer for failure to comply. 6)Provides that these requirements shall be effective on July 1, 2017. AB 2895 Page 4 Background An IIPP is a basic written workplace safety program. California law requires 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. Comments Need for this bill. According to a 2012 OSHA 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." (IIPPs, OSHA, U.S. Department of Labor) In November 19, 2015, the Assembly Labor and Employment AB 2895 Page 5 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. According to the author, IIPPs 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 requires employers to provide employees with access to the written IIPPs at the worksite in English and in the language spoken by the majority of the employees. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: No SUPPORT: (Verified8/2/16) California Rural Legal Assistance Foundation (source) California Labor Federation Centro Legal de la Raza National Employment Law Project Service Employees International Union Southern California Coalition for Occupational Safety and Health The United Farm Workers WORKSAFE OPPOSITION: (Verified8/2/16) AB 2895 Page 6 American Petroleum and Convenience Store Association Associated Builders and Contractors of California Associated General Contractors California Apartment Association California Association for Health Services at Home California Attractions and Parks Association California Chamber of Commerce California Construction and Industrial Materials Association California Cotton Ginners Association California Cotton Growers 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 T.R. Jacob & Associates, LLC Walter & Prince, LLP Western Agricultural Processors Association Western Carwash Association Western Growers Association ARGUMENTS IN SUPPORT: According to the author, California's DOSH has been aggressive and pro-active in helping employers understand and comply with existing requirements regarding the 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 argue that this bill addresses several of the important ways that AB 2895 Page 7 California's IIPP law has failed to keep pace with the changing realities of the workplace--particularly with respect to language barriers--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 note 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. ARGUMENTS IN OPPOSITION: 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 AB 2895 Page 8 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. ASSEMBLY FLOOR: 44-30, 6/2/16 AYES: Alejo, Arambula, Atkins, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Campos, Chau, Chiu, Chu, Cooper, Dababneh, Dodd, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Roger Hernández, Holden, Jones-Sawyer, Levine, Lopez, Low, McCarty, Medina, Mullin, O'Donnell, Quirk, Ridley-Thomas, Rodriguez, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams, Wood, Rendon NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Chang, Chávez, Cooley, Dahle, Frazier, Gallagher, Gray, Grove, Harper, Irwin, Kim, Lackey, Linder, Maienschein, Mathis, Mayes, Melendez, Obernolte, Olsen, Patterson, Salas, Steinorth, Wagner, Waldron, Wilk NO VOTE RECORDED: Daly, Eggman, Beth Gaines, Hadley, Jones, Nazarian Prepared by:Alma Perez-Schwab / L. & I.R. / (916) 651-1556 8/3/16 19:11:10 **** END ****