BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session SB 1167 (Leyva) - Employment safety: indoor workers: heat regulations ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: February 18, 2016 |Policy Vote: L. & I.R. 4 - 1 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: Yes | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: April 18, 2016 |Consultant: Robert Ingenito | | | | ----------------------------------------------------------------- This bill meets the criteria for referral to the Suspense File. Bill Summary: SB 1167 would require the Occupational Safety and Health Standards Board within the Department of Industrial Relations (DIR) to adopt indoor heat prevention standards by July 1, 2017 that provide equal or greater protection than existing outdoor heat regulations. Fiscal Impact: DIR indicates that it would incur first-year costs of $232,000 and second-year costs of $224,000 (special funds) to create the indoor hear standard. Enforcement costs are unknown, but could total $1.4 million annually (special funds, see Staff Comments). SB 1167 (Leyva) Page 1 of ? Background: Current law provides a framework for a safe workplace through DIR's 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. All employers are required to provide a safe and healthy workplace environment, and DOSH is empowered to issue citations if there is evidence that an employee was exposed to a workplace hazard in violation of a DOSH requirement. Current law requires employers (with certain exceptions) to establish, implement and maintain an effective Injury and Illness Prevention Program (IIPP) that includes, among other things, (1) a system for identifying workplace hazards, including scheduled periodic inspections to identify and correct for unsafe conditions and practices, (2) a training program designed to instruct employees in general safe and healthy work practices, and (3) a system for communicating with employees, including provisions that encourage employees to inform employers of hazards at the worksite without fear of reprisal. In the wake of a series of heat-related deaths in the agricultural industry in July 2005, AB 805 (Chu) was introduced to address heat illness by requiring the 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 on the suspense file of this Committee; subsequently, however, the Standards Board promulgated an outdoor heat illness prevention regulation. This regulation (CA Code of Regulations, Title 8 §3395) requires employers to follow specified guidelines to prevent heat illness in outdoor places of employment. Specifically, all employers with outdoor worksites are required to take the following steps to protect their employees from heat illnesses: Provide heat illness prevention training to all employees, including supervisors. 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. SB 1167 (Leyva) Page 2 of ? 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. Develop and implement written procedures for complying with the heat illness prevention standard. 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 Standard 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 IIPP, First Aid and Emergency Services, and Provision of Drinking Water still apply to employers with indoor workplaces. In July 2007, DOSH indicated that it would not be seeking an indoor heat illness standard, citing a small number of cases of indoor heat investigated since 2006. Instead, DOSH concluded the situation was best addressed with more attention to existing worker training regulations as part of IIPP. Proposed Law: This bill would require that by July 1, 2017, DOSH 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 employment. SB 1167 (Leyva) Page 3 of ? Related 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. Staff Comments: As previously noted, DOSH's Heat Illness Prevention standard requirements apply only to outdoor environments; however, employers are still required to prevent hazardous exposure to high indoor temperatures under the 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. SB 1167 (Leyva) Page 4 of ? The bill's language is broad in nature. This, combined with the complexity and potential contentiousness of the subject matter increases the probability that the rulemaking process would be fairly lengthy, requiring multiple advisory committee meetings. DIR estimates that it would require at least 0.5 PY attorney from DOSH's legal unit and 0.5 PY Senior Safety Engineer for a minimum of 12 to 24 months to develop the proposed standard. Staffing costs are estimated to be $232,000 in the first year, and $224,000 in the second year. At the same time, DOSH has prescribed state and federal mandates to respond within certain time frames to complaints and accidents depending on the severity of an incident. In order to meet these mandates, and fulfill Cal/OSHA's duty to under an approved state plan, DOSH would need sufficient resources to respond to complaints and accidents resulting from violations of the standard. Additionally, DOSH would incur increased costs to enforcing the new standard once it is developed. Enforcement costs cannot be predicted with certainty until the scope of the new standard is known. However, as an order of magnitude, DOSH currently utilizes approximately 6 PY safety engineers in outdoor heat enforcement. If the proposed regulation generated a similar enforcement workload to that of outdoor heat, it would require 6 senior safety engineers totaling an additional $1.4 million annually. Any local government costs resulting from the mandate in this measure are not state-reimbursable because the mandate only involves the definition of a crime or the penalty for conviction of a crime. -- END --