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 ----------------------------------------------------------------- |Author: |Leyva | |-----------+-----------------------------------------------------| |Version: |February 18, 2016 | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|Alma Perez-Schwab | | | | ----------------------------------------------------------------- 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. SB 1167 (Leyva) Page 2 of ? 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 SB 1167 (Leyva) Page 3 of ? 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 SB 1167 (Leyva) Page 4 of ? 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 SB 1167 (Leyva) Page 5 of ? 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. SB 1167 (Leyva) Page 6 of ? 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 SB 1167 (Leyva) Page 7 of ? 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 -- END --