BILL ANALYSIS
AB 2774
Page A
ASSEMBLY THIRD READING
AB 2774 (Labor Committee)
As Amended April 14, 2010
Majority vote
LABOR & EMPLOYMENT 4-0
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|Ayes:|Swanson, Furutani, | | |
| |Monning, Yamada | | |
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| | | | |
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SUMMARY : Codifies a definition for "serious physical harm" in
the statute governing occupational safety and health.
Specifically, this bill :
1 Defines "serious physical harm" as any injury or illness,
specific or cumulative, occurring in the place of employment
or in connection with any employment, which is the consequence
of a condition, practice, means, method, operation or process
that meets any of the following:
a) Requires inpatient hospitalization for a period in
excess of 24 hours for other than medical observation;
b) Causes an employee to suffer the loss of any member of
the body;
c) Causes an employee to suffer any serious degree of
permanent disfigurement; or,
d) Could reasonably lead to impairment of a part of the
body by substantially reducing its efficiency on or off the
job for more than 24 hours.
2)Specifies that a single condition, practice, means, method,
operation or process can be properly classified as resulting
in "serious physical harm."
EXISTING LAW :
1 Provides that a "serious violation" of occupational safety and
health law shall be deemed to exist in a place of employment
AB 2774
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if there is a substantial probability that death or "serious
physical harm" could result from a violation.
2)Does not contain a statutory definition for "serious physical
harm."
FISCAL EFFECT : Unknown
COMMENTS : This bill attempts to address an issue of
significant concern that has been raised by, among others,
worker advocates, the Division of Occupational Safety and Health
(DOSH), and the federal Occupational Safety and Health
Administration (OSHA): how "serious violations" are defined and
cited under California law.
Supporters note that California's rate of serious citations is
currently the lowest in the country. Moreover, California is
likely out of compliance with the Federal OSHA program. In
January, 2010, Federal OSHA informed both DOSH and the Appeals
Board that it was conducting a Special Study of the state
program. While Federal OSHA has not yet issued its findings,
the letters indicated the state plan was likely not as effective
as the Federal OSHA program with respect to the definition of
"serious physical harm."
Supporters contend that this bill defines "serious physical
harm" to comport with Federal OSHA law and existing California
law. The legislation closely tracks the definition of "serious
physical harm" in the Federal OSHA Field Operation Manual and
closely tracks current settled California law as set first forth
in a 1985 Appeals Board case, Abatti Farms/Produce.
Finally, supporters conclude that California's occupational
safety and health program has been the best in the country in
many regards for years. California cannot and should not risk
jeopardizing the entire program because one aspect is out of
compliance, particularly when this aspect of the problem may be
promptly and effectively addressed through legislation. This
bill is a crucial tool in the effort to improve Cal/OSHA's
ability to reach the worst offenders and to level the playing
field for legitimate law-abiding businesses. Supporters state
that this bill would benefit those employers that play by the
rules by enabling Cal/OSHA more effectively to prosecute those
employers that gain an economic advantage from not protecting
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their employees' safety and health.
A coalition of employer groups, including the California Chamber
of Commerce, oppose this bill unless amended, arguing that this
overly expansive definition will lead to an increase in
citations classified as serious that are now and should continue
to be classified as general. A serious citation carries
significant financial implications so should therefore only be
issued where warranted.
Opponents contend that this new definition will encourage
employer appeals because an employer's citation record is
considered in most competitive bidding situations. Employers
routinely appeal serious citations which they believe are
unwarranted. A significant increase in the number of serious
citations issued is likely to create a significant increase in
appeals to those citations. The current Appeals Board resources
cannot timely adjudicate an increase in appeals that is likely
from this expansive change to the serious violation definition.
However, opponents do state that they appreciate the discussions
that they have had with author's staff and sponsors of the bill.
The employer coalition has submitted amendments to the bill for
consideration and will continue to participate in good faith
discussions.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091
FN: 0004222