BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 2774|
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THIRD READING
Bill No: AB 2774
Author: Assembly Labor and Employment Committee
Amended: 5/28/10 in Assembly
Vote: 21
SENATE LABOR & INDUSTRIAL RELATIONS COMM : 4-1, 6/23/10
AYES: DeSaulnier, Ducheny, Leno, Yee
NOES: Hollingsworth
NO VOTE RECORDED: Wyland
ASSEMBLY FLOOR : 44-29, 6/2/10 - See last page for vote
SUBJECT : Occupational safety and health
SOURCE : Author
DIGEST : This bill establishes a definition for serious
physical harm in the States 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 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
CONTINUED
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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:
1.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.
2."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 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
results in any of the following:
A. Inpatient hospitalization for a period in
excess of 24 hours for other than medical
observation.
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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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/30/10)
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
California Rural Legal Assistance Foundation
East Bay Repetitive Strain Injury Support Group
International Brotherhood of Electrical Workers Local No.
595
Kazan, McClain, Lyons, Greenwood & Harley
National Lawyers Guild
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!
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OPPOSITION : (Verified 6/30/10)
Alpha Fund [oppose unless amended]
Associated General Contractors
Associated Roofing Contractors of the Bay Area Counties,
Inc.
Association of California Water Agencies [oppose unless
amended]
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 Small Business Association
California Special District Association [oppose unless
amended]
California State Association of Counties [oppose unless
amended]
Construction Employers' Association
Contractors' National Association
CSAC Excess Insurance Authority
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
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ARGUMENTS IN SUPPORT : According to the author's office,
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 state 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. 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 fatalities are reclassified as general
violations. Therefore, they believe 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.
ARGUMENTS IN OPPOSITION : A coalition of employer groups
oppose this bill unless amended, arguing that this overly
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expansive definition will lead to an increase in citations
classified as serious that are now and should continue to
be classified as general. Opponents contend 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 against an employer
for a serious violation, opponents maintain 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
maintain 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.
ASSEMBLY FLOOR :
AYES: Ammiano, Arambula, Bass, Beall, Block, Blumenfield,
Bradford, Brownley, Charles Calderon, Carter, Coto,
Davis, De La Torre, De Leon, Eng, Evans, Feuer, Fong,
Fuentes, Furutani, Hall, Hayashi, Hernandez, Hill,
Huffman, Jones, Bonnie Lowenthal, Ma, Mendoza, Monning,
Nava, V. Manuel Perez, Portantino, Ruskin, Salas,
Saldana, Skinner, Solorio, Swanson, Torlakson, Torres,
Torrico, Yamada, John A. Perez
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NOES: Adams, Anderson, Bill Berryhill, Blakeslee,
Buchanan, Caballero, Conway, Cook, DeVore, Emmerson,
Fletcher, Fuller, Gaines, Garrick, Gilmore, Hagman,
Harkey, Huber, Jeffries, Knight, Logue, Miller, Niello,
Nielsen, Norby, Silva, Smyth, Tran, Villines
NO VOTE RECORDED: Tom Berryhill, Chesbro, Galgiani, Lieu,
Nestande, Audra Strickland
PQ:nl 6/30/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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