BILL ANALYSIS
Senate Committee on Labor and Industrial Relations
Mark DeSaulnier, Chair
Date of Hearing: June 23, 2010 2009-2010 Regular
Session
Consultant: Alma Perez Fiscal:No
Urgency: No
Bill No: AB 2774
Author: Assembly Labor and Employment Committee
Version: As amended May 28, 2010
SUBJECT
Occupational safety and health.
KEY ISSUE
Should the Legislature define what constitutes "serious physical
harm" in employment?
Should the Legislature establish a California definition for
"serious physical harm" that is at least as effective as that of
the Federal Occupational Safety and Health Administration
(Federal OSHA)?
PURPOSE
To establish a definition for "serious physical harm" in the
State's statute governing occupational safety and health.
ANALYSIS
With the passage of the Occupational Safety and Health Act of
1970 , Congress created the Federal Occupational Safety and
Health Administration (Federal OSHA) as part of the United
States Department of Labor to ensure safe and healthful working
conditions for working men and women by setting and enforcing
standards and by providing training, outreach, education and
assistance. The OSH Act covers employers and their employees
either directly through federal OSHA or through an OSHA-approved
state program. State programs must meet or exceed federal OSHA
standards for workplace safety and health.
Under existing law, the California Occupational Safety and
Health Act of 1973 was enacted to ensure safe and healthful
working conditions for all California workers by, among other
things, authorizing the enforcement of effective standards as
well as assisting and encouraging employers to maintain safe and
healthful working conditions. The Division of Occupational
Safety and Health (DOSH, also knows as Cal/OSHA), within the
state Department of Industrial Relations (DIR), is charged with
enforcing occupational health and safety laws, orders, and
standards, including the investigation of alleged violations of
those provisions.
Existing law authorizes DOSH to issue a citation when an
employer causes an employee to suffer or potentially suffer,
among other things, "serious injury or illness" or "serious
physical harm." Existing law defines:
A "Serious injury or illness," generally, as a workplace
injury or illness requiring inpatient hospitalization for a
more than 24 hours or resulting in the loss of a body
member or in permanent disfigurement.
"Serious Exposure," as any exposure of an employee to a
hazardous substance when the exposure occurs as a result of
an incident, accident, emergency, or exposure over time and
is in a degree or amount sufficient to create a
substantial probability that death or serious physical harm
in the future could result from the exposure.
This Bill would codify 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
results in any of the following:
a. Inpatient hospitalization for a period in
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excess of 24 hours for other than medical observation.
b. The loss of any member of the body.
c. Any serious degree of permanent disfigurement.
d. Impairment of the body in which part of the
body is made functionally useless or is substantially
reduced in efficiency on or off the job for more than
72 hours.
e. A serious illness or impairment of the
function of an organ, such as the heart, lungs, liver,
skin, and nervous system that substantially reduces
efficiency on or off the job. An illness or
impairment of this type would usually require
treatment beyond first aid by a medical doctor or
other licensed health care professional.
2. Specifies that "serious physical harm" may be caused by
a single, repetitive practice, means, method, operation, or
process.
COMMENTS
1. Background on Types of Citations and Penalties under
California Law
In California, an employer may be issued a citation by DOSH
for an alleged violation of the law which affects the safety
or health of employees. Citations may be issued for the
following reasons:
A "regulatory violation" - cited when an employer fails
to comply with record keeping, posting or permit
requirements.
A "general violation" - cited when an accident or
occupational illness resulting from violation of a standard
would probably not cause death or serious physical harm,
but would have a direct or immediate relationship to the
safety or health of employees.
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A "serious violation" - cited where there is substantial
probability that death or "serious physical harm" could
result from a condition which exists - or from practices,
operations or processes at the workplace.
A "willful violation" - where evidence shows that the
employer committed an intentional and knowing violation (as
distinguished from inadvertent or accidental or ordinarily
negligent) and the employer is conscious of the
fact that what they are doing constitutes a violation, or
is aware that a hazardous condition exists and no
reasonable effort was made to eliminate the hazard.
A "repeat violation" - when a recurrence of the
previously cited standard, regulation, order or condition
is found within three years of the previous violation
becoming a final order. Repeat violations differ from
willful violations in that they may result from an
inadvertent, accidental or ordinarily negligent act. If
a repeat violation is also willful, a citation for willful
violation is issued.
Under existing law, civil penalties are issued to employers
for alleged violations and/or failure to abate a violation.
Criminal penalties may also be levied in certain cases. The
law also contains misdemeanor provisions relating to matters
such as knowingly or negligently violating a workplace safety
and health regulation, repeatedly violating a regulation, or
refusing to comply with a regulation, and thereby creating an
employee hazard. Criminal penalties are enforced by the local
district attorney.
The Occupational Safety and Health Appeals Board (Appeals
Board), within DIR, is a three-member judicial body appointed
by the Governor and confirmed by the Senate, which handles
appeals from private and public-sector employers regarding
citations issued by DOSH for alleged violations of workplace
safety and health laws.
2. Recent Federal OSHA Letters to California and Audit :
As a result of concerns raised by stakeholders regarding the
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actions of the Occupational Safety and Health Appeals Board in
reducing the backlog of appeals cases that existed, this and
other Committees in the Legislature have conducted oversight
hearings and meetings on the Appeals Board since 2009.
In addition to oversight activities at the state level, in
recent months, federal OSHA has commenced an audit of DOSH
(including a "special study" of the Occupational Safety and
Health Appeals Board) looking at a number of issues. However,
of particular concern to federal OSHA have been the issues
involving "serious violations" and the current Appeals Board's
interpretation of the term "serious physical harm."
In a January 8, 2010 letter to the Chair of the OSH Appeals
Board, federal OSHA stated the following:
"One area of concern that has been identified during our
initial review is regarding Appeals Board policy/approach for
reviewing the classification of serious violation.
...??
Unfortunately, it appears that in defining 'serious physical
harm,' the Board's current policy limits this phrase to the
Labor Code definition of 'serious injury,' at section 6302(h).
There are other issues of concern regarding the issuance of
serious violation, however even if this finding is correct, a
determination of the [D]OSH program not being at least as
effective as Federal OSHA is possible. Any clarification or
action you can take regarding this issue is appreciated."
Federal OSHA is expected to complete and release the results
of the audit and special study before the end of the year.
3. Need for this bill?
In response to the concerns raised by federal OSHA, in January
the Chief of DOSH filed a rulemaking petition with the Appeals
Board suggesting that they address the issue of "serious
violation" and "serious physical harm" via regulation. The
Appeals Board subsequently convened a series of advisory
committee meetings to consider these and other rulemaking
proposals. The Appeals Board, however, has chosen not to
proceed with rulemaking on this specific issue arguing that
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Senate Committee on Labor and Industrial Relations
this change would be "substantive" in nature rather than
"procedural." In response, the Chief of DOSH has announced
his intent to address this issue administratively via
"Director's Regulations" under the authority of DIR.
As discussed above, current California law provides
definitions for "serious injury or illness" and "serious
violation," however; the code does not contain a specific
definition of the term "serious physical harm." The author
argues that lacking an adequate definition of "serious
physical harm" affects the ability of "serious violations"
proposed by DOSH to be upheld throughout the appellate
process. According to the U.S. Department of Labor, in fiscal
year 2009, in California only 19% of all violations cited by
DOSH were cited as serious, compared to 77% for Federal OSHA
(See chart below). This bill attempts to address the concern
raised by federal OSHA and others by establishing a definition
for "serious physical harm" in statute.
4. Proponent Arguments :
According to the author, current workplace health and safety
law does not contain an adequate definition for "serious
physical harm," which impacts the ability of citations against
employer for "serious" violations from being upheld during the
appeals process. According to proponents, this bill is a
necessary first step to bring the California occupational
safety and health program into compliance with Federal OSHA
law. In addition, they argue that this bill will help
strengthen the Cal/OSHA program, improve enforcement, and
result in better working conditions for all California
workers.
Proponents note that California's rate of serious citations is
currently the lowest in the country. Moreover, they argue,
California is likely out of compliance with the Federal OSHA
program. In addition, proponents contend that this bill is
needed because the OSH Appeals Board is applying the wrong
meaning to that phrase, won't issue a regulation, and won't
follow a regulation that Cal/OSHA might issue. According to
proponents, with no statutory definition for "serious physical
harm," far too many citations issued after serious injuries or
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Senate Committee on Labor and Industrial Relations
fatalities are reclassified as general violations. Therefore,
they contend that employers who should be cited and penalized
appropriately for serious violations are instead given a
"slap on the wrist" and issued a general violation citation
instead.
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 to more
effectively prosecute those employers that gain an economic
advantage from not protecting their employees' safety and
health.
5. Opponent Arguments :
A coalition of employer groups 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.
Opponents argue that a serious citation carries significant
financial implications and should only be issued where
warranted.
According to opponents, AB 1127 (Steinberg) of 1999
significantly increased penalties on employers who are cited
for serious citations. They argue that prior to this measure
California's base penalty for a serious citation was the same
as Federal OSHA - $5,000. AB 1127 increased that base penalty
more than three times to the highest in the country at $18,000
(California Code of Regulations, Title 8, 336 (c) (1)).
According to opponents, this enormous increase in liability to
employers significantly increased the number of citation
appeals, resulting in a backlog that has just been cleared
this year. Because of the level of penalty that is assessed
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Senate Committee on Labor and Industrial Relations
against an employer for a serious violation, opponents argue
that we should be judicious in issuing serious citations.
Opponents contend that this new definition will encourage
employer appeals because an employer's citation record is
considered in most competitive bidding situations. They argue
that employers routinely appeal serious citations which they
believe are unwarranted. Furthermore, opponents argue that a
significant increase in the number of serious citations issued
is likely to create a significant increase in appeals to those
citation and they argue that current Appeals Board resources
cannot timely adjudicate an increase in appeals. However,
opponents do state that they appreciate the discussions that
they have had with author's staff and sponsors of the bill.
6. California as compared to other states :
FY 2009 Inspection Activity
Percent of All Violations Cited as Serious
---------------------
| | FY |
| |2009 |
|--------------+------|
|Alaska | 26% |
|--------------+------|
|Arizona | 23% |
|--------------+------|
|California | 19% |
|--------------+------|
|Connecticut | 28% |
|*** | |
|--------------+------|
|Hawaii | 60% |
|--------------+------|
|Indiana | 57% |
|--------------+------|
|Iowa | 65% |
|--------------+------|
|Kentucky | 63% |
|--------------+------|
Hearing Date: June 23, 2010 AB 2774
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|Maryland | 45% |
|--------------+------|
|Michigan | 37% |
|--------------+------|
|Minnesota | 74% |
|--------------+------|
|Nevada | 28% |
|--------------+------|
|New Jersey | 82% |
|*** | |
|--------------+------|
|New Mexico | 67% |
|--------------+------|
|New York *** | 58% |
|--------------+------|
|North | 38% |
|Carolina | |
|--------------+------|
|Oregon | 43% |
|--------------+------|
|Puerto Rico | 47% |
|--------------+------|
|South | 70% |
|Carolina | |
|--------------+------|
|Tennessee | 55% |
|--------------+------|
|Utah | 71% |
|--------------+------|
|Vermont | 66% |
|--------------+------|
|Virgin | 53% |
|Islands *** | |
|--------------+------|
|Virginia | 61% |
|--------------+------|
|Washington | 34% |
|--------------+------|
|Wyoming | 55% |
|--------------+------|
|All State | 43% |
|Plans | |
Hearing Date: June 23, 2010 AB 2774
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|--------------+------|
|Federal OSHA |77% |
---------------------
Source: U.S. Department of Labor, OSHA, FY 2009.
State Plan ENFC Report, 11.19.2009, Public and Private Sectors
included.
*** State Plan covers public employees only
SUPPORT
American Federation of State, County and Municipal Employees
Bricklayers and Allied Craftworkers Local 3 of Northern
California
California Applicants' Attorneys Association
California Labor Federation
California Nurses Association/National Nurses Organizing
Committee
East Bay Repetitive Strain Injury Support Group
International Brotherhood of Electrical Workers Local No. 595
Kazan, McClain, Lyons, Greenwood & Harley
National Lawyers Guild
One individual ltr. [Barbara Materna, PhD.]
Plumbers and Steamfitters Local 159
State Building and Construction Trades Council of California,
AFL-CIO
United Steelworkers Local 675
UPTE-CWA Local 9119
Voters Injured at Work
Worksafe!
OPPOSITION
Alpha Fund [oppose unless amended]
Associated General Contractors
Hearing Date: June 23, 2010 AB 2774
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Senate Committee on Labor and Industrial Relations
Associated Roofing Contractors of the Bay Area Counties, Inc.
Association of California Water Agencies [oppose unless amended]
California Association of Joint Powers Authorities
California Association of Joint Powers Authorities [oppose
unless amended]
California Association of Sheet Metal and Air conditioning
Contractors' National Association
California Automotive Business Coalition
California Chamber of Commerce
California Chapter of the American Fence Association
California Construction & Industrial Materials Association
California Farm Bureau Federation
California Fence Contractors Association
California Framing Contractors Association
California Grocers Association
California Independent Grocers Association
California Manufacturers and Technology Association
California Professional Specialty Contractors Association
California Restaurant Association
California Special District Association [oppose unless amended]
California State Association of Counties [oppose unless amended]
Construction Employers' Association
Engineering Contractors Association
Flasher/Barricade Association
Life Technologies Corporation
Marin Builders Association
Public Agency Safety Management Association - PASMA
Residential Contractors Association
SafeCon
Walter & Prince, LLP
Western Electrical Contractors Association (WECA-IEC)
Western Growers
* * *
Hearing Date: June 23, 2010 AB 2774
Consultant: Alma Perez Page 11
Senate Committee on Labor and Industrial Relations