BILL ANALYSIS Ó
SENATE COMMITTEE ON LABOR AND INDUSTRIAL RELATIONS
Senator Tony Mendoza, Chair
2015 - 2016 Regular
Bill No: SB 1167 Hearing Date: April 6,
2016
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|Author: |Leyva |
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|Version: |February 18, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Alma Perez-Schwab |
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Subject: Employment safety: indoor workers: heat regulations
KEY ISSUE
Should the Legislature require the Occupational Safety and
Health Standards Board to adopt indoor heat prevention standards
by July 1, 2017 that provides equal or greater protection than
existing outdoor heat regulations?
ANALYSIS
Existing law:
1. Provides a framework for a safe and healthy workplace in
the Department of Industrial Relations (DIR) through the
Division of Occupational Safety and Health (DOSH, also
known as Cal/OSHA) and the Occupational Safety and Health
Standards Board (Standards Board) in the adoption and
enforcement of standards.
2. Requires all employers to provide a safe and healthy
workplace environment, and empowers DOSH to issue citations
if there is evidence that an employee was exposed to a
workplace hazard in violation of a DOSH requirement.
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3. Requires employers, with some exceptions, to establish,
implement and maintain an effective Injury and Illness
Prevention Program (IIPP) that includes, among other
things, the following (Labor Code §6401.7):
a. A system for identifying workplace hazards,
including scheduled periodic inspections to identify
unsafe conditions and practices - as well as methods
and procedures for correcting these in a timely
manner;
b. A training program designed to instruct
employees in general safe and healthy work practices;
c. A system for communicating with employees,
including provisions that encourage employees to
inform employers of hazards at the worksite without
fear of reprisal.
4. Under DOSH Heat Illness Prevention regulations (CA Code
of Regulations, Title 8 §3395) , all employers with outdoor
worksites are required to take the following steps to
protect their employees from heat illnesses:
a) Provide heat illness prevention training to
all employees, including supervisors.
b) Provide enough fresh water free of charge so
that each employee can drink at least one quart per
hour, or four 8 ounce glasses, for the entire shift.
c) Provide access to shade and encourage
employees to take a cool-down rest period in the shade
for at least 5 minutes when an employee believes he or
she needs a preventive recovery period. They should
not wait until they feel sick to do so.
d) Develop and implement written procedures for
complying with the heat illness prevention standard.
This Bill would require that by July 1, 2017, the Division of
Occupational Safety and Health propose for review and adoption
by the Standards Board, an indoor health and safety standard
that protects workers from heat-related illness and injury and
that meet or exceed the protections for outdoor places of
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employment.
COMMENTS
1. Background on Heat Illness Standards:
Following a rash of heat-related deaths in the agricultural
industry in July of 2005, AB 805 (Chu) was introduced to
address heat illness by requiring the Occupational Safety and
Health Standards Board to adopt an effective occupational
safety and health standard for heat illness prevention and
response for all employees at risk of heat illness. The bill
was held under submission by the Senate Appropriations
Committee; however, as a result of this legislative push for
regulatory action, the Standards Board promulgated an outdoor
heat illness prevention regulation. This regulation requires
employers to follow specified guidelines to prevent heat
illness in outdoor places of employment, which were detailed
above.
During the public comment period for the regulation, some
stakeholders argued that the regulation failed to protect many
at-risk workers who work indoors and are exposed to
heat-related illness. The Board's Final Statement of Reasons
in support of the regulation responded to these concerns by
recognizing that heat illness is not limited to outdoor work
environments and committing to reconvene an advisory committee
to address the risk of heat illness in indoor work
environments. The Board also noted that existing regulations,
particularly with respect to Injury and Illness Prevention
Program, First Aid and Emergency Services, and Provision of
Drinking Water still apply to employers with indoor
workplaces.
In July 2007, the Division of Occupational Safety and Health
(DOSH) announced that it would not be seeking an indoor heat
illness standard citing a small number of cases of indoor heat
investigated since 2006. Due to the low case load, DOSH staff
concluded the situation was best handled with more attention
to existing worker training regulations as part of the Injury
and Illness Prevention Program (IIPP). Additionally, DOSH
produced a flyer entitled "Cal/OSHA Heat Illness Prevention
for Indoor Working Environments" which focuses on five key
areas of prevention, a written IIPP; frequent drinking of
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water; rest breaks; acclimation and weather monitoring; and
emergency preparedness.
2. Need for this bill?
Although DOSH's Heat Illness Prevention standard requirements
apply only to outdoor environments, employers are still
required to prevent hazardous exposure to high indoor
temperatures under the Injury and Illness Prevention Program
(IIPP) standard. All IIPPs must include effective procedures
for hazard identification, evaluation and control, hazard
correction, investigation of employee injuries and illnesses,
and communication with employees about health and safety
matters.
A recent Occupational Safety and Health Appeal Board decision
affirms the responsibility of employers to ensure indoor heat
illness is addressed through their IIPP. The case stemmed from
a 2012 serious citation issued to Tri-State Staffing and
warehouse operator National Distribution Center for the heat
illness suffered by an employee who was working inside a metal
freight container with a temperature of over 100 degrees. DOSH
penalized both companies for failing to implement an effective
IIPP and both companies appealed the citation winning their
case before an administrative law judge (ALJ). In March 2015,
DOSH appealed that decision to the Occupational Safety and
Health Appeals Board stating that the employers had failed to
effectively correct the indoor hazard and had not trained
employees on indoor heat exposure. In November 2015, the ALJ's
decision was overturned by the Appeals Board reinforcing the
responsibility that employers have to protect the health and
safety of their workers, including those working indoors.
While this recent Appeals Board decision helps reinforce the
importance of indoor heat preparedness, proponents argue that
it is not enough to protect workers. This bill would require
the adoption of an indoor health and safety standard that
protects workers from indoor heat-related illnesses and
injuries that meet or exceed the protections already available
for outdoor places of employment.
3. Proponent Arguments :
According to proponents, every year, an unknown number of
workers in California die from heat illness. More are
hospitalized, and even far more suffer exposure but fear
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retaliation and never report symptoms to their employer. They
argue that the problem goes beyond just one industry since
affected workers range from warehouse workers to laundry
workers to restaurant workers where temperatures can quickly
reach unsafe and deadly levels without the proper temperature
controls or cooling systems.
While current law requires employers to address all known
hazards as part of their IIPP, proponents argue that many
employers fail to maintain an adequate prevention program and
thus many workers remain at risk. Furthermore, they argue
that the IIPP is general in nature and the basic procedures
set forth in the outdoor heat illness regulations would better
protect employees facing the same hazard in indoor
environments. They conclude by stating that without an indoor
heat illness regulation, many workers remain at risk.
4. Opponent Arguments :
Opponents of the measure argue that this bill is unnecessary
since existing regulations already require employers to have
written procedures, to conduct worksite evaluations, to
identify and correct worksite hazards, and train employees
through their Injury and Illness Prevention Plans. These
provisions apply to all workplace hazards, and to all
employees. They argue that the IIPP provides both the guidance
as well as the flexibility in designing a prevention, training
and response proposal that responsibly balances the health and
safety of workers with employer needs. Additionally, they note
that Cal/OSHA has prepared an instructive informational piece
with recommendations for the prevention of heat illness for
indoor working environments for employers to use.
Further, they argue that if in fact indoor heat illness
prevention presents a hazard which is not being adequately
addressed, Cal/OSHA has other methods with which to effect
compliance with current regulations. The Consultation Unit
creates educational materials, provides employer workplace
consultations and inspections, and provides outreach and
educational workshops and forums for employers. They believe
that Cal/OSHA has been very effective in developing and
implementing special emphasis programs to increase compliance
and argue that a collaborative approach can be more effective
in encouraging compliance rather than adopting duplicative
regulation as proposed by this bill.
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5. Prior Legislation :
AB 838(Swanson, 2009) and AB 1045(Richardson, 2007) would have
required the Occupational Safety and Health Standards Board to
adopt a standard for controlling the risk of occurrence of
heat illness where employees work indoors. Both measures were
vetoed by Governor Schwarzenegger.
AB 805 (Chu, 2005), discussed earlier, would have required the
Occupational Safety and Health Standards Board to adopt a
standard on heat illness prevention at all workplaces. AB 805
was held under submission by the Senate Appropriations
Committee.
SUPPORT
California Labor Federation, AFL-CIO (Co-Sponsor)
Northern CA District Council of the International Longshore &
Warehouse Union (Co-Sponsor)
California Conference Board of the Amalgamated Transit Union
California Professional Firefighters
California Rural Legal Assistance Foundation
California Teamsters Public Affairs Council
Engineers & Scientists of California, IFPTE Local 20, AFL-CIO
International Longshore and Warehouse Union
National Lawyers Guild - Labor & Employment Committee
Professional and Technical Engineers, IFPTE Local 21, AFL-CIO
United Farm Workers
UNITE-HERE, AFL-CIO
Utility Workers Union of America
OPPOSITION
Agricultural Council of California
Associated Builders and Contractors of California
Associated General Contractors of California
CalAsian Chamber of Commerce
California Association of Joint Powers Authorities
California Attractions and Parks Association
California Building Industry Association
California Chamber of Commerce
California Construction and Industrial Materials Association
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California Cotton Ginners and Growers Association
California Farm Bureau Federation
California Framing Contractors Association
California Fresh Fruit Association
California Grocers Association
California League of Food Processors
California Lodging Industry Association
California Manufacturers & Technology Association
California Nurseries and Garden Centers
California Professional Association of Specialty Contractors
California Restaurant Association
California Retailers Association
California Travel Association (CalTravel)
Condon-Johnson & Associates, Inc.
FarWest Equipment Dealers Association
Independent Lodging Industry Association
Motion Picture Association of America
National Federation of Independent Business
Residential Contractor's Association
Western Agricultural Processors Association
Western Steel Council
Wine Institute
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