California Assembly Bill AB2774 Amended / Bill

 BILL NUMBER: AB 2774AMENDED BILL TEXT AMENDED IN SENATE AUGUST 10, 2010 AMENDED IN ASSEMBLY MAY 28, 2010 AMENDED IN ASSEMBLY APRIL 14, 2010 AMENDED IN ASSEMBLY APRIL 8, 2010 INTRODUCED BY  Committee on Labor and Employment   (   Swanson (Chair), Furutani, Monning, and Yamada   )   Assembly Member   Swanson  MARCH 1, 2010 An act to  amend Section 6302   repeal and add Section 6432  of the Labor Code, relating to employment. LEGISLATIVE COUNSEL'S DIGEST AB 2774, as amended,  Committee on Labor and Employment   Swanson  . Occupational safety and health. Existing law  requires an employer to provide employees with a safe workplace and  authorizes the  Department   Division  of Occupational Safety and Health  within the Department of Industrial Relations  to enforce health and safety standards in places of employment and to investigate and to issue a citation  and impose civil penalties  when an employer  commits a serious violation that  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 hospitalization of more than 24 hours or resulting in the loss of a body member or in permanent disfigurement.   This bill would define "serious physical harm" to include most categories of a "serious injury or illness," but would also include those resulting in physical impairment of a part of the body or from a single cause or from the cumulative effect of multiple injuries or illnesses.   This bill would establish a rebuttable presumption as to when an employer commits a serious violation of these provisions and would define serious physical harm, as specified. The bill would also establish new procedures and standards for an investigation and the determination by the division of a serious violation by an employer which causes harm or exposes an employee to the risk of harm.  Vote: majority. Appropriation: no. Fiscal committee:  no   yes  . State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   Section 6432 of the   Labor Code   is repealed.   6432. (a) As used in this part, a "serious violation" 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, including, but not limited to, circumstances where there is a substantial probability that either of the following could result in death or great bodily injury: (1) A serious exposure exceeding an established permissible exposure limit. (2) The existence of one or more practices, means, methods, operations, or processes which have been adopted or are in use, in the place of employment. (b) Notwithstanding subdivision (a), a serious violation shall not be deemed to exist if the employer can demonstrate that it did not, and could not with the exercise of reasonable diligence, know of the presence of the violation. (c) As used in this section, "substantial probability" refers not to the probability that an accident or exposure will occur as a result of the violation, but rather to the probability that death or serious physical harm will result assuming an accident or exposure occurs as a result of the violation.   SEC. 2.   Section 6432 is added to the   Labor Code   , to read:   6432. (a) There shall be a rebuttable presumption that a "serious violation" exists in a place of employment if the division 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 by the division is not sufficient by itself to establish that the violation is serious. The actual hazard may be either of the following: (1) A serious exposure exceeding an established permissible exposure limit. (2) The existence in the place of employment of one or more unsafe or unhealthful practices, means, methods, operations, or processes that have been adopted or are in use. (b) (1) Before issuing a citation alleging that a violation is serious, the division shall make a reasonable attempt to determine and consider, among other things, all of the following: (A) Training for employees and supervisors relevant to preventing employee exposure to the hazard or to similar hazards. (B) Procedures for discovering, controlling access to, and correcting the hazard or similar hazards. (C) Supervision of employees exposed or potentially exposed to the hazard. (D) Procedures for communicating to employees about the employer's health and safety rules and programs. (E) Information that the employer wishes to provide, at any time before citations are issued, including, any of the following: (i) The employer's explanation of the circumstances surrounding the alleged violative events. (ii) Why the employer believes a serious violation does not exist. (iii) Why the employer believes its actions related to the alleged violative events were reasonable and responsible so as to rebut, pursuant to subdivision (c), any presumption established pursuant to subdivision (a). (iv) Any other information that the employer wishes to provide. (2) The division shall determine and consider the facts specified in paragraph (1) if, not less than 15 days prior to issuing a citation for a serious violation, the division delivers to the employer a standardized form containing descriptions of the alleged violations and clearly soliciting the information specified in this subdivision. The director shall prescribe the form for the alleged violation descriptions and solicitation of information. Any forms issued pursuant to this section shall be exempt from the rulemaking provisions of the Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code). (c) If the division establishes a presumption pursuant to subdivision (a) that a violation is serious, the employer may rebut the presumption and establish that a violation is not serious by demonstrating that the employer did not know and could not, with the exercise of reasonable diligence, have known of the presence of the violation. The employer may accomplish this by demonstrating both of the following: (1) 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. Factors relevant to this determination include those listed in subdivision (b). (2) The employer took effective action to eliminate employee exposure to any hazard created by a violation as soon as the violation was discovered. (d) If the employer does not provide information in response to a division inquiry made pursuant to subdivisions (b) and (c), the employer shall not be barred from presenting that information at the hearing and no negative inference shall be drawn. The employer may offer different information at the hearing than what was provided to the division and may explain any inconsistency, but the trier of fact may draw a negative inference from the prior out-of-court inconsistent factual information. The trier of fact may also draw a negative inference from factual information offered at the hearing by the division that is inconsistent with factual information provided to the employer pursuant to subdivisions (b) and (c), or from a failure by the division to provide the form setting forth the descriptions of the alleged violation and soliciting information pursuant to subdivision (b). (e) "Serious physical harm," as used in this part, means 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: (1) Inpatient hospitalization for purposes other than medical observation. (2) The loss of any member of the body. (3) Any serious degree of permanent disfigurement. (4) Impairment sufficient to cause a part of the body or the function of an organ to become permanently and significantly reduced in efficiency on or off the job, including, 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. (f) Serious physical harm may be caused by a single, repetitive practice, means, method, operation, or process. (g) A division safety engineer or industrial hygienist who can demonstrate that his or her division-mandated training is current shall be deemed competent to offer credible 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 that is relevant to the issue of whether the violation is a serious violation.   SECTION 1.   Section 6302 of the Labor Code is amended to read: 6302. As used in this division: (a) "Director" means the Director of Industrial Relations. (b) "Department" means the Department of Industrial Relations. (c) "Insurer" includes the State Compensation Insurance Fund and any private company, corporation, mutual association, and reciprocal or interinsurance exchange, authorized under the laws of this state to insure employers against liability for compensation under this part and under Division 4 (commencing with Section 3201), and any employer to whom a certificate of consent to self-insure has been issued. (d) "Division" means the Division of Occupational Safety and Health. (e) "Standards board" means the Occupational Safety and Health Standards Board, within the department. (f) "Appeals board" means the Occupational Safety and Health Appeals Board, within the department. (g) "Aquaculture" means a form of agriculture as defined in Section 17 of the Fish and Game Code. (h) "Serious injury or illness" means any injury or illness occurring in a place of employment or in connection with any employment which requires inpatient hospitalization for a period in excess of 24 hours for other than medical observation or in which an employee suffers a loss of any member of the body or suffers any serious degree of permanent disfigurement, but does not include any injury or illness or death caused by the commission of a Penal Code violation, except the violation of Section 385 of the Penal Code, or an accident on a public street or highway. (i) "Serious exposure" means 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. (j) (1) "Serious physical harm" means 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. (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) "Serious physical harm" may be caused by a single, repetitive practice, means, method, operation, or process.