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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