BILL ANALYSIS �
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
AB 2676 (Calderon) - Agricultural employee safety.
Amended: June 26, 2012 Policy Vote: Public Safety 5-1
Urgency: No Mandate: Yes
Hearing Date: August 6, 2012 Consultant:
Bob Franzoia
This bill may meet the criteria for referral to the Suspense
File.
Bill Summary: AB 2676 would make it a crime for any person who
directs an agricultural employee to perform, or supervises an
agricultural employee in the performance of, outdoor work
without providing the employee with shade and potable water,
punishable by imprisonment not exceeding six months in a county
jail, by a fine not exceeding $10,000, or by both the
imprisonment and fine, or if that violation results in injury to
an agricultural employee, by imprisonment not exceeding one year
in a county jail, by a fine not exceeding $25,000, or by both
that fine and imprisonment.
Fiscal Impact: Unknown, potential cost annually to the
Occupational Safety and Health Fund in the Department of
Industrial Relations Division of Occupational Safety and Health
(DOSH) if a criminal code statute creates an implied work safety
standard.
The Occupational Safety and Health Fund sunsets July 1,
2013.
Background: Existing law permits the Occupational Safety and
Health Standards Board within the department to adopt
occupational health and safety standards to protect the welfare
of employees, and existing regulations provide for the
prevention of heat-related illness of employees, as prescribed.
Under existing law, it is a misdemeanor for an employer to
violate a safety standard if the violation has a substantial
probability of resulting in death or serious physical harm.
DOSH regulations for heat illness prevention apply to all places
of outdoor employment, specifically agricultural, construction,
landscaping, oil and gas extraction, and the movement of goods.
AB 2676 (Calderon)
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These regulations require:
- Employees must have access to potable drinking water. Where
drinking water is not plumbed or otherwise continuously
supplied, it shall be provided in sufficient quantity at the
beginning of the work shift to provide one quart per employee
per hour for drinking for the entire shift.
- Employers may begin the shift with smaller quantities of water
if they have effective procedures for replenishment during the
shift as needed to allow employees to drink one quart or more
per hour. The frequent drinking of water must be encouraged.
- Shade must be present whenever the temperature is 85 degrees
or more, and the shade must be sufficient to accommodate 25
percent of the employees on the shift at any time, so that they
can sit in a normal posture fully in the shade without having to
be in physical contact with each other. The shaded area shall
be located as close as practicable to the areas where employees
are working;
- Employees shall be allowed and encouraged to take a cool-down
rest in the shade for a period of no less than five minutes at a
time when they feel the need to do so to protect themselves from
overheating. Such access to shade shall be permitted at all
times.
- The employer shall implement high-heat procedures when the
temperature equals or exceeds 95 degrees. This includes
improving ways of communicating between employees and
supervisors, requiring observation of employees for heat
illness, and the encouraging of water consumption.
- The employer must provide appropriate training to agricultural
workers on the risk of heat illness and appropriate emergency
response to heat illness when it occurs.
Proposed Law: This bill would create a state mandated local
program by including agricultural employees as a class of
employees protected by criminal penalties under existing law.
No reimbursement is required.
Related Legislation: AB 2346 (Butler) would prescribe specified
duties on employers to reduce the risk of heat illness among
agricultural employees, to be enforced by the division. This
bill would impose specified civil penalties, and create a
private right of action, for violations of these requirements.
AB 2346 is on today's file.
Staff Comments: California Code of Regulations Section 3395 Heat
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Illness Prevention provides, in part, the following:
(b) Definitions. (Highlights note commonality between the
regulations and language in the bill.)
"Shade" means blockage of direct sunlight. One indicator that
blockage is sufficient is when objects do not cast a shadow in
the area of blocked sunlight. Shade is not adequate when heat
in the area of shade defeats the purpose of shade, which is to
allow the body to cool. For example, a car sitting in the sun
does not provide acceptable shade to a person inside it, unless
the car is running with air conditioning. Shade may be provided
by any natural or artificial means that does not expose
employees to unsafe or unhealthy conditions.
"Temperature" means the dry bulb temperature in degrees
Fahrenheit obtainable by using a thermometer to measure the
outdoor temperature in an area where there is no shade. While
the temperature measurement must be taken in an area with full
sunlight, the bulb or sensor of the thermometer should be
shielded while taking the measurement, e.g., with the hand or
some other object, from direct contact by sunlight.
(c) Provision of water. Employees shall have access to potable
drinking water meeting the requirements of Sections 1524, 3363,
and 3457, as applicable. Where drinking water is not plumbed or
otherwise continuously supplied, it shall be provided in
sufficient quantity at the beginning of the work shift to
provide one quart per employee per hour for drinking for the
entire shift. Employers may begin the shift with smaller
quantities of water if they have effective procedures for
replenishment during the shift as needed to allow employees to
drink one quart or more per hour. The frequent drinking of
water, as described in subsection (f) (1) (C), shall be
encouraged.
(d) Access to shade.
(1) Shade required to be present when the temperature exceeds 85
degrees Fahrenheit. When the outdoor temperature in the work
area exceeds 85 degrees Fahrenheit, the employer shall have and
maintain one or more areas with shade at all times while
employees are present that are either open to the air or
provided with ventilation or cooling. The amount of shade
present shall be at least enough to accommodate 25% of the
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employees on the shift at any time, so that they can sit in a
normal posture fully in the shade without having to be in
physical contact with each other. The shaded area shall be
located as close as practicable to the areas where employees are
working.
(2) Shade required to be available when the temperature does not
exceed 85 degrees Fahrenheit. When the outdoor temperature in
the work area does not exceed 85 degrees Fahrenheit employers
shall either provide shade as per subsection (d) (1) or provide
timely access to shade upon an employee's request.
(3) Employees shall be allowed and encouraged to take a
cool-down rest in the shade for a period of no less than five
minutes at a time when they feel the need to do so to protect
themselves from overheating. Such access to shade shall be
permitted at all times.
Exceptions to subsection (d):
(1) Where the employer can demonstrate that it is infeasible or
unsafe to have a shade structure, or otherwise to have shade
present on a continuous basis, the employer may utilize
alternative procedures for providing access to shade if the
alternative procedures provide equivalent protection.
(2) Except for employers in the agricultural industry, cooling
measures other than shade (e.g., use of misting machines) may be
provided in lieu of shade if the employer can demonstrate that
these measures are at least as effective as shade in allowing
employees to cool.
As noted above, the provisions of this bill including
"continuous, ready access to an area of shade sufficient to
allow a body to cool" and "portable water that is suitably cool
and available in quantities sufficient to allow the employee to
drink one quart of water per hour throughout the employee's
workshift" are nearly identical to existing regulations and with
regard to water, may be more easily enforceable though DOSH will
essentially have two sets of "regulations." However, DOSH can
only cite for violations of regulations and not of statutes.
Thus, it is unclear at this time if DOSH will have a minor, if
any, increase in enforcement workload or whether DOSH will be
expected to investigate and document whether the conditions
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existed to trigger the misdemeanor penalty. Also, it is
difficult to determine whether potential criminal prosecution
for failure to provide sufficient readily accessible and
sufficiently cool potable water may affect the practices of
employers and farm labor contractors who direct or supervise
agricultural employees engaged in outdoor work.