BILL ANALYSIS
Senate Committee on Labor and Industrial Relations
Mark DeSaulnier, Chair
Date of Hearing: July 8, 2009 2009-2010 Regular
Session
Consultant: Gideon L. Baum Fiscal:Yes
Urgency: No
Bill No: AB 838
Author: Swanson
Version: As Introduced February 26, 2009
SUBJECT
Occupational safety and health.
KEY ISSUE
Should the Legislature require the Occupational Safety and
Health Standards Board to adopt indoor heat standards by July 1,
2011?
PURPOSE
To create workplace standards to reduce indoor heat illness
occurrences.
ANALYSIS
Existing law requires all employers to provide a safe and
healthy workplace environment, and empowers the Division of
Occupational Safety and Health (DOSH) to issue citations if
there is evidence that an employee was exposed to a workplace
hazard in violation of a DOSH requirement.
Existing law requires, with certain exceptions, every employer
to establish, implement and maintain an effective Injury and
Illness Prevention Program (IIPP) that, among other things,
requires employers to train employees on workplace hazards that
are new or previously unidentified.
Existing DOSH regulations requires all employers with outdoor
worksites to take the following steps to prevent heat illness:
a) Provide heat illness prevention training to all
employees, including supervisors.
b) Provide enough fresh water so that each employee can
drink at least 1 quart per hour and encourage them to do
so.
c) Provide access to shade for at least 5 minutes of rest
when an employee believes he or she needs a preventative
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 requires the Occupational Safety and Health Standards
Board to adopt a standard for controlling the risk of occurrence
of heat illness where employees work indoors by July 1, 2011.
COMMENTS
1. Legislative Background:
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 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
Hearing Date: July 8, 2009 AB 838
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Senate Committee on Labor and Industrial Relations
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, once the standard for outdoor workplaces is in
place." 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 2007, AB 1045 (Richardson) was introduced to require the
Occupational Safety and Health Standards Board to adopt an
occupational and health standard by July 1, 2008 for
controlling the risk of occurrence of heat illness where
employees work indoors. The bill mandated the standard to
require employers to establish, implement, and maintain
written procedures to recognize the symptoms of, assure
medical treatment for, and prevent the occurrence of, heat
illness, and specified provisions to be included in those
written procedures.
AB 1045 was vetoed by Governor Schwarzenegger, who stated the
following in his veto message on the bill:
Two years ago, my Administration worked with the
Occupational Safety and Health Standards Board
(Board) to
adopt the nation's first outdoor heat
regulations. Those
regulations require employers to provide anyone
working
outdoors with appropriate training, provide
sufficient
quantities of water, and ensure access to shade.
When the
Board adopted those regulations it also said it
would
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commence a review of indoor worksites.
The Board has conducted its review and is now
considering
the appropriate means of protecting indoor
workers from
excessive heat. This legislation, which
proscribes
specific requirements upon any regulation adopted
by the
Board, unnecessarily circumvents the Board's
established
rulemaking process. Just as the outdoor heat
standards were
adopted via the regulatory process and free of
legislative
interference, so too should any indoor heat
standard be
adopted.
In July 2007, the Division of Occupational Safety and Health
(DOSH) announced that it would not be seeking a regulatory
requirement specifically applicable to heat illness in indoor
places of employment. At the time, Len Welsh, Chief of DOSH,
noted that only six cases of indoor heat illness had been
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.
Since that time, the Division of Occupational Safety and
Health (DOSH) has produced a flyer entitled "Cal/OSHA Heat
Illness Prevention for Indoor Working Environments" which
focused on five key areas of prevention:
1) Written procedures for addressing indoor heat
illness in the employer's Injury and Illness Prevention
Program;
2) Frequent drinking of water;
3) Rest breaks in cooler areas;
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4) Acclimatization and Weather Monitoring; and
5) Being prepared for emergencies.
The flyer also stressed the need for employee and supervisor
training on heat illness prevention.
2. Proponent Arguments :
The California Labor Federation, the sponsor of this bill,
argues that an effective approach to heat-related illness is
vital to protect the lives of California workers. The key to
preventing heat-related illness is to train employers and
workers on how to identify heat related hazards and to
implement proper controls and work practices. Unfortunately,
in many cases, neither the workers nor their employers have
the awareness of the symptoms that would alert them to report
heat illness cases before it is too late.
The California Labor Federation contends that there are
thousands of workers in California working in high-heat indoor
environments. For example, the Federation notes that there
are over 100,000 workers who work in food processing and
manufacturing carrying out such tasks as packing melons,
cooking sugar beets, meatpacking, and making dog and cat food.
These work environments require close proximity to
continuously running equipment that cooks and dries products
all day.
Similarly, the Labor Federation cites the example of
industrial laundries, which employ nearly 20,000 workers in
California. Indoor temperatures in this industry often exceed
one hundred degrees Fahrenheit. Combined with high humidity,
the heat index in such workplaces can easily be 120-130
degrees.
The California Labor Federation notes other high indoor heat
work environments can include warehouse workers, steelworkers,
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pastry bakers, iron, steel and nonferrous foundry workers,
brick firing and ceramics operations, glass products
manufacturing plants, rubber products manufacturing plants,
electrical utilities (particularly boiler rooms), restaurant
kitchens, smelters, and steam tunnels.
Unfortunately, the California Labor Federation reports that
over the last 4 years, two union workers have died at indoor
worksites in California. Last year a worker died at a
warehouse in Tracy. He complained of heat illness symptoms and
was sent home but sadly, he died in the warehouse parking lot.
Three years ago another union member died under similar
circumstances at a warehouse in Lancaster. In this instance,
the worker made it to the hospital where he died.
The California Labor Federation believes that had an indoor
regulation been in place, these two workers would have been
trained along with their co-workers on how to recognize,
prevent, and treat the symptoms of heat illness and the
workers might be alive today. However, with no regulations
in place, there is no requirement for employers to make sure
that they or their workers are trained to identify the
symptoms of heat illness and the appropriate response.
3. Opponent Arguments :
Opponents, who include the California Chamber of Commerce and
the California Manufacturers and Technology Association, argue
that current law requires all employers to address workplace
hazards, including and especially those hazards that are
unique to each workplace. DOSH regulations also require that
if an Injury and Illness Prevention Plan (IIPP) is not
adequate or complete, DOSH can issue citations. Opponents
note that the IIPP specifically requires all employers to
develop a safety program to identify and mitigate safety
hazards in the workplace and to train employees about the
hazards. Opponents believe that indoor heat exposure is
especially suited to the IIPP to ensure employee safety in
these unique environments. Opponents also argue that an IIPP
gives an employer flexibility to design a safety plan specific
to the workplace, and that this bill would create another set
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of regulations to apply to all employers, even where excessive
heat exposure is not present would impose an unnecessary
burden on employers.
4. Prior Legislation :
AB 1045 (Richardson) of 2007, which discussed earlier, would
have required the Occupational Safety and Health Standards
Board to adopt an occupational and health standard by July 1,
2008 for controlling the risk of occurrence of heat illness
where employees work indoors. AB 1045 was vetoed by Governor
Schwarzenegger.
AB 805 (Chu) of 2005, which was also 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 (Sponsor)
Northern California District Council of the Int'l Longshore and
Warehouse Union (Co-Sponsor)
American Federation of State, County and Municipal Employees,
AFL-CIO
California Applicants' Attorneys Association
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists
California Nurses Association/National Nurses Organizing
Committee
California Teamsters Public Affairs Council
Engineers and Scientists of California
International Longshore and Warehouse Union
Professional & Technical Engineers, Local 21
Strategic Committee of Public Employees, LIUNA
UNITE HERE!
United Food and Commercial Workers Union, Western States Council
Hearing Date: July 8, 2009 AB 838
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Senate Committee on Labor and Industrial Relations
OPPOSITION
Associated General Contractors
California Attractions and Parks Association
California Chamber of Commerce
California Framing Contractors Association
California Hotel and Lodging Association
California Manufacturers and Technology Association
California Restaurant Association
California Retailers Association
Motion Picture Association of America
Western Electrical Contractors Association
Western Growers
* * *
Hearing Date: July 8, 2009 AB 838
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Senate Committee on Labor and Industrial Relations