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 --