BILL ANALYSIS Ó
SB 1167
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Date of Hearing: June 22, 2016
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Roger Hernández, Chair
SB
1167 (Leyva) - As Amended May 31, 2016
SENATE VOTE: 25-12
SUBJECT: Employment safety: indoor workers: heat regulations
SUMMARY: Requires the Division of Occupational Safety and
Health (DOSH) to propose for the Occupational Safety and Health
Standards Board (Standards Board) review and adoption, standards
that minimize heat-related illness and injury among indoor
workers by July 1, 2018. Specifies that this requirement does
not prohibit the DOSH from proposing, or the Standards Board
from adopting, a standard that limits the application of high
heat provisions to certain industries.
EXISTING LAW:
1)Provides a framework for a safe and healthy workplace through
the DOSH and the Standards Board in the adoption and
enforcement of standards.
2)Requires all employers to provide a safe and healthy
workplace, and empowers DOSH to issue citations if evidence is
found of employee exposure to workplace hazards in violation
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of a DOSH standard.
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:
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 them.
b) A training program designed to instruct employees in
general safe and healthy work practices, and
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)Requires, under the DOSH Heat Illness Prevention regulations,
all employers with outdoor worksites to take the following
steps to protect their employees from heat illnesses:
a) Provide heat illness prevention training to all
employees.
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 shift.
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c) Provide access to shade and encourage employees to take
a cool-down rest period in the shade for at least five
minutes when an employee believes he or she needs a
preventive recovery period.
d) Develop and implement written procedures for complying
with the heat illness prevention standard.
FISCAL EFFECT: According to the Senate Appropriations
Committee, the Department of Industrial Relations (DIR)
indicates that it would incur first-year costs of $232,000 and
second-year costs of $224,000 to create the indoor hear
standard. Enforcement costs are unknown, but could total $1.4
million annually.
COMMENTS: 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 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 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
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at-risk workers who work indoors and are exposed to heat-related
illness. The Standards 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 Standards 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, the 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
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 water; rest breaks; acclimation and weather
monitoring; and emergency preparedness.
A recent Occupational Safety and Health Appeals 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.
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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 requires the
adoption of a standard that minimizes heat-related illness and
injury among indoor workers. (According to the Senate LIR
Committee analysis.)
Arguments in Support
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
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. Lastly, they state 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.
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Arguments in Opposition
Opponents of this bill 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
IIPP. 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.
Additionally, they contend 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
rather than adopting duplicative regulations.
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Prior Related Legislation
AB 838 (Swanson) of 2009 would have required the Standards Board
to adopt a standard for controlling the risk of occurrence of
heat illness where employees work indoors by July 1, 2011. The
bill was vetoed by the Governor, whose message stated, "As I
said when vetoing similar legislation two years ago, there is no
need to legislate a mandate in this area.
The OSHSB has the authority to adopt regulations in this area
and will do so when it determines the need for a specific
standard on indoor heat."
AB 1045 (Richardson) of 2007 would have required the Board to
adopt a standard for indoor heat illness prevention and
prescribes certain requirements for that standard. The bill was
vetoed by the Governor.
AB 805 (Chu) of 2005 would have addressed 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 in Senate Appropriations Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
American Federation of State, County and Municipal Employees
California Conference Board of the Amalgamated Transit Union
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California Immigrant Policy Center
California Labor Federation, AFL-CIO (co sponsor)
California Professional Firefighters
California Rural Legal Assistance Foundation
California Teamsters Public Affairs Council
Centro Legal de la Raza
Engineers & Scientists of California, IFPTE Local 20
International Longshore and Warehouse Union
Maintenance Cooperation Trust Fund
National Employment Law Project
National Lawyers Guild - Labor & Employment Committee
Northern CA District Council of the International Longshore &
Warehouse Union (co sponsor)
Professional and Technical Engineers, IFPTE Local 21
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SEIU California
United Farm Workers
UNITE-HERE
Utility Workers Union of America, Local 132
Western Occupational and Environmental Medicine Association
WORKSAFE
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
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California Association of Nurseries and Garden Centers
California Attractions and Parks Association
California Building Industry Association
California Chamber of Commerce
California Construction and Industrial Materials Association
California Cotton Ginners and Growers Association
California Cut Flower Commission
California Farm Bureau Federation
California Framing Contractors Association
California Fresh Fruit Association
California Grocers Association
California League of Food Processors
California Lodging Industry Association
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California Manufacturers & Technology Association
California Nurseries and Garden Centers
California Professional Association of Specialty Contractors
California Restaurant Association
California Retailers Association
California Travel Association
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
Southwest California Legislative Council
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Western Agricultural Processors Association
Western Growers Association
Western Steel Council
Wine Institute
Analysis Prepared by:Lorie Alvarez / L. & E. / (916)
319-2091