BILL ANALYSIS
AB 2774
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 2774 (Swanson)
As Amended August 19, 2010
Majority vote
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|ASSEMBLY: |44-29|(June 2, 2010) |SENATE: |23-13|(August 24, |
| | | | | |2010) |
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Original Committee Reference: L. & E.
SUMMARY : Revises the standards and process for the issuance of
citations for "serious" violations of state occupational safety
and health laws.
The Senate amendments :
1 Provide that there shall be a rebuttable presumption that a
"serious violation" exists in a place of employment if the
Division of Occupational Safety and Health (DOSH) demonstrates
that there is a realistic possibility that death or serious
physical harm could result from the actual hazard created by
the violation. The demonstration of a violation is not
sufficient by itself to establish that the violation is
serious.
2)Require DOSH, before issuing a citation alleging that a
violation is serious, to make a reasonable attempt to
determine and consider specified information from the
employer.
3)Specify that DOSH shall satisfy its requirement to determine
and consider the specified information if, not less than 15
days prior to issuing a citation for a serious violation, it
delivers to the employer a standardized form containing
specified information.
4)Provide that an employer may rebut the presumption and prove
that a violation is not serious by demonstrating that the
employer did not and could not, with the exercise of
reasonable diligence, have known of the presence of the
violation. The employer nay accomplish this by demonstrating
both of the following:
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a) The employer took all the steps a reasonable and
responsible employer in like circumstances should be
expected to take, before the violation occurred, to
anticipate and prevent the violation, taking into
consideration the severity of the harm that could be
expected to occur and the likelihood of that harm occurring
in connection with the work activity during which the
violation occurred; and,
b) The employer took effective action to eliminate employee
exposure to the hazard created by the violation as soon as
the violation was discovered.
5)Define "serious physical harm" to mean any injury or illness,
specific or cumulative, occurring in the place of employment
or in connection with any employment, that results in any of
the following:
a) Inpatient hospitalization for purposes
other than medical observation;
b) The loss of any member of the body;
c) Any serious degree of permanent
impairment; and,
d) Impairment sufficient to cause a part of the body of the
function of an organ to become permanently and
significantly reduced in efficiency on or off the job,
including but not limited to, depending on the severity,
second-degree or worse burns, crushing injuries including
internal injuries even though skin surface may be intact,
respiratory illnesses, or broken bones.
6)Specify that serious physical harm may be caused by a single,
repetitive practice, means, method, operation or process.
7)Provide that a DOSH safety engineer or industrial hygienist
who can demonstrate, at the time of the hearing, that his or
her DOSH-mandated training is current shall be deemed
competent to offer testimony to establish each element of a
serious violation, and may offer evidence on the custom and
practice of injury and illness prevention in the workplace
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that is relevant to the issue of whether the violation is a
serious violation.
8)Make other related changes as specified.
EXISTING LAW provides that a "serious" violation of occupational
safety and health law shall be deemed to exist in a place of
employment if there is a "substantial probability" that death or
"serious physical harm" could result from a violation.
AS PASSED BY THE ASSEMBLY , this bill:
1 Defined "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;
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; or,
e) A serious illness or impairment of the function of an
organ 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)Specified that "serious physical harm" may be caused by a
single, repetitive practice, means, method, operation or
process.
FISCAL EFFECT : According to the Senate Appropriations
Committee, this bill will result in between $300,000 and
$600,000 in annual costs (special funds), with a likely overall
reduction in appeals process costs in future years.
COMMENTS : This bill attempts to address an issue of significant
concern that has been raised by, among others, worker advocates,
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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."
As introduced, this bill attempted to establish a statutory
definition for the term "serious physical harm." However, the
bill was opposed by a large coalition of employers as being
overly expansive.
Over the past several months, the interested stakeholders
(including the Department of Industrial Relations) have engaged
in lengthy negotiations over the issues addressed by this bill.
The recent amendments reflect an agreement that has been reached
by the parties for a comprehensive solution addressing many
issues related to the issuance of citations for "serious"
violations, beyond simply the issue of "serious physical harm."
This bill revamps the process by which "serious" violations are
cited by DOSH and how those citations are addressed during the
appeals process. Among other things, the bill sets forth a
process whereby DOSH can establish a presumption of a "serious"
violation, and the employer has an opportunity to rebut that
presumption.
This bill also sets forth a process for dialogue and
communication between DOSH and the employer during the
investigation process before a citation is issued.
Specifically, the bill requires DOSH, before issuing a citation
alleging that a violation is serious, to make a reasonable
attempt to determine and consider specified information from the
employer. The bill specifies that DOSH shall satisfy this
requirement if, not less than 15 days prior to issuing a
citation for a serious violation, it delivers to the employer a
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standardized form containing specified information. While
failure by DOSH to provide the form shall not constitute grounds
for dismissing the citation, the trier of fact may draw a
negative inference if DOSH fails to provide the form.
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091
FN:
0006372