California Assembly Bill AB2346 Amended / Bill

 BILL NUMBER: AB 2346AMENDED BILL TEXT AMENDED IN SENATE AUGUST 6, 2012 AMENDED IN SENATE JULY 2, 2012 AMENDED IN ASSEMBLY APRIL 25, 2012 AMENDED IN ASSEMBLY APRIL 9, 2012 INTRODUCED BY Assembly Member Butler FEBRUARY 24, 2012 An act to amend Section 6330 of, and to add Chapter 10 (commencing with Section 6720) to Part 1 of Division 5 of, the Labor Code, relating to occupational safety. LEGISLATIVE COUNSEL'S DIGEST AB 2346, as amended, Butler. Agricultural employee safety: heat-related illness. (1) Existing law permits the Occupational Safety and Health Standards Board within the Department of Industrial Relations to adopt occupational health and safety standards to protect the welfare of employees. The Division of Occupational Safety and Health enforces occupational safety and health standards and orders. Certain violations of these standards and orders are crimes. This bill would prescribe specified duties on employers to reduce the risk of heat illness among agricultural employees, to be enforced by the division. The bill would impose specified civil penalties, and create a private right of action, for violations of these requirements. The bill would impose a state-mandated local program because certain violations of the bill's requirements would be a crime under existing provisions of law. The bill would require the Director of Industrial Relations to provide an annual report to the Legislature regarding the enforcement of the requirements. (2) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. This act may be known, and shall be cited, as the Farm Worker Safety Act of 2012. SEC. 2. Section 6330 of the Labor Code is amended to read: 6330. (a) The director shall prepare and submit to the Legislature, not later than March 1, an annual report on the division activities. The report shall include, but need not be limited to, the following information for the previous calendar year: (1) The amount of funds allocated and spent in enforcement, education and research, and administration by the division. (2) Total inspections made, and citations issued by the division. (3) The number of civil penalties assessed, total amount of fines collected, and the number of appeals heard. (4) The number of contractors referred to the Contractors' State License Board for hearing, pursuant to Section 7109.5 of the Business and Professions Code, and the total number of these cases resulting in suspension or revocation of a license. (5) The report from the division prepared by the Bureau of Investigations for submission to the director pursuant to Section 6315.3. (6) Recommendations for legislation that improves the ability of the division to provide safety in places of employment. (7) (A) The number of complaints received charging a violation of Chapter 10 (commencing with Section 6720), and the number of those complaints that did not result in an onsite inspection. (B) The amount of initial penalties imposed for a violation of Chapter 10 (commencing with Section 6720), the amount by which those penalties were reduced through amendment, the amount by which those penalties were reduced through informal settlement, the amount by which those penalties were reduced through formal settlement, the amount by which those penalties were reduced by decision of the appeals board, other than a decision approving a formal settlement, and the amount by which those penalties were reduced by any other means. (C) The amount of penalties collected for a violation of Chapter 10 (commencing with Section 6720). (b) The report shall be made to the Speaker of the Assembly and the Chairperson of the Senate Committee on Rules, for assignment to the appropriate committee or committees for evaluation. SEC. 3. Chapter 10 (commencing with Section 6720) is added to Part 1 of Division 5 of the Labor Code, to read: CHAPTER 10. AGRICULTURAL EMPLOYMENT 6720. For the purpose of this chapter, the following terms have the following meanings: (a) "Acclimatization" means temporary adaptation of the body to work in the heat that occurs gradually when a person is exposed to the heat.  (b) "Areas where employees are working" includes the physical locations where labor is being performed, and excludes restrooms.   (b)   (c)  "Employee" means an agricultural employee.  (c)   (d)  "Employer" means an agricultural employer.  (d)   (e)  "Environmental risk factors for heat illness" means working conditions that create the possibility that heat illness could occur, including air temperature, relative humidity, radiant heat from the sun and other sources, conductive heat sources such as the ground, air movement, workload severity and duration, and protective clothing.  (e)   (f)  "Farm operator" includes both of the following: (1) A person who owns the real property used in the farming operation, except that, when the real property is leased, the owner is considered a farm operator only if he or she gains something of benefit from the farming operation beyond the reasonable and customary rent or cost of leasing the property. (2) A person who leases the real property used in the farming operation.  (f)   (g)  "Farming operation" shall be liberally construed to include farming in any of its branches, and includes the production, cultivation, growing, harvesting, packing, whether in a field, packing shed, or any other location, or shipping of any agricultural or horticultural commodities, including commodities defined as agricultural commodities in Section 1141j(f) of Title 12 of the United States Code; any activity necessary to the operation of a dairy farm, as defined in Section 32505 of the Food and Agricultural Code; the raising of livestock, bees, furbearing animals, or poultry; and any practices, including any forestry or lumbering operations, performed by a farm operator or in a farm operation as an incident to or in conjunction with these farming operations, including preparation for market and delivery to storage or to market or to carriers for transportation to market.  (g)   (h)  "Heat illness" means a serious medical condition resulting from the body's inability to cope with a particular heat load, and includes heat cramps, heat exhaustion, heat syncope, and heat stroke.  (h)   (i)  "Personal risk factors for heat illness" means factors such as an individual's age, degree of acclimatization, health, water consumption, alcohol consumption, caffeine consumption, and use of prescription medications that affect the body's water retention or other physiological responses to heat.  (i)   (j)  "Shade" means complete 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.  (j)   (k)  "Temperature" means the dry bulb temperature in degrees Fahrenheit obtainable by using a thermometer to measure the outdoor temperature. Except where otherwise indicated, the temperature measurement shall be taken in an area where there is no shade. The bulb or sensor of the thermometer shall be shielded, with the hand or some other object, from direct contact by sunlight while taking the measurement. 6721. (a) This chapter applies to the control of the risk of occurrence of heat illness among agricultural employees. This chapter is not intended to exclude the application of any section of Title 8 of the California Code of Regulations. This chapter applies to all outdoor places of agricultural employment. (b) (1)  (A)    Each employee shall have continuous, ready access  , as close as possible and at a distance of no more than 10 feet from where he or she is working,  to fresh, pure, and suitably cool potable drinking water meeting the requirements of Title 8 of the California Code of Regulations, which does not have an unpalatable smell or taste.  The   (B) The water shall be located as close as practicable to the areas where employees are working, and shall be at a distance of not greater than 200 feet from any employee at any time other than when the employee is using a restroom or traveling between the restroom and an area where employees are working. If an employee is working on a crop that is planted in a row longer than 400 feet and the water is located within 10 feet of each end of the row where the employee is working, the water shall be deemed to be at a distance of not greater than 200 feet from the employee.   (C)     The  temperature of the water shall be 70 degrees or lower  , or the water shall contain ice that has not completely melted,  at all times.  The   (D)     The  water shall be provided to  the   each  employee free of charge. (2)  Each   In addition to the water access required by paragraph (1), each  employee shall be provided with a canteen for his or her individual use for the temporary storage and drinking of water, or with a cup of at least 8-ounce but no more than 32-ounce capacity for his or her individual use for the drinking of water. The canteens or cups shall be provided to the employees free of charge and replaced or cleaned and sanitized after each work shift.  Each employee shall be encouraged to keep any canteen with him or her during work.  (3) Where drinking water is not plumbed or otherwise continuously supplied, it shall be provided in a sufficient quantity at the beginning of the work shift to provide at least one quart per employee per hour for drinking for the entire shift. Water shall be available at all times in sufficient quantities to provide at least one quart per employee per hour for the remainder of the work shift. (4) The frequent drinking of water, as described in this section, shall be encouraged and permitted. At no time shall any employer state or imply that an employee will face a negative consequence for the frequent drinking of water or for stopping work to drink water. Each employee shall be compensated for the time taken to access water. For an employee working on a piece-rate basis, compensation during the pay period in which time was taken to access water shall be determined based upon the employee's average piece-rate wage. (c) (1) 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 shaded area shall be located as close as practicable to the areas where employees are working, and  in no event  shall be at a distance  of not  greater than 200 feet  away  from any employee  at any time other than when the employee is using a restroom or traveling between the restroom and an area where employees are working. If an employee is working on a crop that is planted in a row longer than 400 feet and shaded areas are located within 10 feet of each end of the row where the employee is working, the shaded areas shall be deemed to be at a distance of not greater than 200 feet from the employee  . Canopies, umbrellas, and other temporary structures or devices may be used to provide shade in combination, if they completely block direct sunlight and the temperature in the area of shade is significantly lower than the ambient temperature outside of that area. (2) The amount of shade provided shall be enough to accommodate all of the employees on the shift at any time, so that the employees can all sit fully in the shade without having to be in physical contact with each other. An employer shall provide seating or ground covering sufficient to prevent each of the employees from being in contact with bare soil and to insulate each of the employees from the heat of the ground. (d) (1) Each employee shall be encouraged and permitted to take rest breaks in the shade at any time when he or she feels the need to do so to protect himself or herself from overheating. At no time shall any employer state or imply that an employee will face any negative consequence for taking a rest break in the shade or for stopping work to take a rest break in the shade. An employee who takes a rest break shall be encouraged and permitted to continue resting in the shade as long as necessary to ensure that any signs or symptoms of heat illness have resolved, but in no event for less than 10 minutes in addition to the time needed to access the shade. Rest in the shade shall be permitted at all times. (2) The employer shall implement additional high-heat procedures when the temperature equals or exceeds 80 degrees. These procedures shall be in addition to, and not instead of, any other procedures required by this chapter, and shall include all of the following: (A) Requiring that each employee take a rest break at least every two hours for a minimum of 15 minutes per break. (B) Ensuring that effective communication by voice, observation, or electronic means is maintained so that employees at the worksite can immediately contact a supervisor when necessary. An electronic device, such as a cellular telephone or text messaging device, may be used for this purpose only if reception in the area is reliable. (C) Using a buddy system, in which two workers are assigned to observe each other throughout the workday or a portion of the workday, to encourage each other to drink water and take rest breaks, and to watch for signs of heat illness. Each worker shall be trained to recognize the signs of heat illness in others. (D) Supervisor observation of employees for decreases in alertness and signs or symptoms of heat illness. If a supervisor observes a decrease in alertness or signs or symptoms of heat illness, the supervisor shall take action as required under subdivision (e). (E) Reminding employees throughout the work shift to drink plenty of water. (F) Close supervision of a new employee for heat illness prevention by a supervisor or designee for the first 14 days of the employee's employment by the employer, unless the employer documents at the time of hire that the employee has been doing similar outdoor work for at least 10 of the past 30 days for four or more hours per day. (3) Each employee shall be compensated for rest breaks taken pursuant to this section, and for rest periods or cool-down rest periods established by any applicable regulation or order of the Industrial Welfare Commission, the Division of Occupational Health and Safety, or the Occupational Safety and Health Standards Board. An employee working on a piece-rate basis shall be compensated at the employee's average piece-rate wage during the pay period in which the rest break, rest period, or cool-down rest period was taken. (e) If a supervisor observes, or any employee reports, any signs of heat illness in an employee, the supervisor shall take immediate action to alleviate the symptoms, including providing the employee with water, a paid rest break in the shade, and appropriate first aid. The employee shall be provided access to medical aid consistent with the procedures established pursuant to subdivision (f). (f) (1) An employer shall establish procedures for the following: (A) Responding to signs of possible heat illness, including how emergency medical services will be provided. (B) Contacting emergency medical services and, if necessary, transporting employees to a place where they can be reached by an emergency medical service provider. (C) Ensuring that, in the event of an emergency, clear and precise directions to the worksite are provided to emergency responders. (2) The procedures shall include designating a person to be available to ensure that emergency procedures are invoked when appropriate. (3) The procedures shall be deemed insufficient, and therefore in violation of this subdivision, if either of the following occurs: (A) An employee presents signs of heat illness and is not transported, commencing within five minutes of the onset of the heat stress signs, by air-conditioned automobile or ambulance to the nearest appropriate emergency medical service provider for appropriate medical care.  An employer is not subject to the requirement that the transportation commence within five minutes of the onset of the heat stress signs if the employer has developed a written alternative emergency response plan and obtained from the local fire department or other appropriate emergency service provider written approval of the   plan prior to the date on which the employee presented signs of heat illness, and the employer substantially complied with   that plan when the employee presented signs of heat illness.  (B) An employee presents suspected signs of heat illness and is sent home instead of being given onsite first aid and being transported by air-conditioned automobile or ambulance to the nearest appropriate emergency medical service provider and assessed and authorized for discharge by licensed medical personnel. (g) (1) An employee shall not begin outdoor work unless the employee has received the training required by this paragraph. Effective training in the following topics shall be provided to each supervisory and nonsupervisory employee: (A) The requirements of this section, including the employer's responsibility to provide water, shade, rest breaks, and access to medical aid as set forth in this section, and the prohibition on retaliation as set forth in Section 6723. (B) The employer's procedures established pursuant to subdivision (f). (C) The environmental and personal risk factors for heat illness, as well as the added burden of heat load on the body caused by exertion, clothing, and personal protective equipment. (D) The importance of frequent consumption of small quantities of water, up to four cups per hour, when the work environment is hot and employees are likely to be sweating more than usual in the performance of their duties. (E) The importance of acclimatization. (F) The different types of heat illness and the common signs and symptoms of heat illness. (G) The importance to each employee of immediately reporting to the employer, directly or through the employee's supervisor, symptoms or signs of heat illness in himself or herself, or in coworkers. (2) A supervisor shall not be assigned to supervise employees unless the supervisor has received the training required by this paragraph. In addition to the training required by paragraph (1), effective training on the following topics shall be provided to each supervisory employee: (A) The procedures the supervisor is to follow to implement the applicable provisions of this section. (B) The procedures the supervisor is to follow when an employee exhibits symptoms consistent with possible heat illness, including emergency response procedures. (C) How to monitor weather reports and how to respond to hot weather advisories. 6722. (a) (1) An employer shall maintain written procedures for complying with the requirements of this chapter. The written procedures shall be made available within 24 hours of a request made by a representative of the division, an employee, or a representative of an employee. (2) Procedures for complying with the requirements of this chapter may be integrated into the employer's written Injury and Illness Prevention Program, or maintained in a separate document. (b) (1) An employer shall certify by January 31 of each year, or on the first day of operation in any calendar year in which an employer begins an employment relationship after January 31, that the employer has adopted written procedures for complying with the requirements of this chapter, and has acquired and made available to the appropriate persons all materials and equipment necessary for providing employees with water, shade, and training in the prevention of heat illness. This certification shall be in writing, signed, and dated, and shall be made available within 24 hours of a request made by a representative of the division, an employee, or a representative of an employee. (2) If an employer is found not to have adopted written procedures for complying with the requirements of this chapter following certification, or is found to lack any of the materials and equipment necessary for providing employees with water, shade, and training in the prevention of heat illness following certification, there shall be a rebuttable presumption that the certification was false at the time it was made, and the employer shall be subject to penalties for fraud. (c) Prior to the commencement of outdoor work at any worksite, the employer shall post in a manner readily visible and legible a sign setting forth the identity of the farm operator, the identity of the employer, the date, the number of employees of that employer in each crew at that worksite on that date, and the location at which the written procedures for complying with this chapter are maintained. 6723. (a) An employee shall not be discharged or penalized in any way for drinking water, taking a break to get water, taking a rest break in the shade, or taking any other action on behalf of himself or herself or his or her coworkers that is reasonably calculated to prevent heat illness. (b) An employee shall not be discharged or penalized in any way for taking action to secure his or her employer's compliance with the requirements of this chapter, including directly or indirectly communicating with the employer about the requirements of this chapter or the prevention of heat illness, reporting a violation of this chapter or otherwise communicating with any person or entity about the employer's compliance with the requirements of this section, or participating in any way in any investigation or proceeding to enforce the requirements of this chapter. 6724. (a) (1) This chapter shall be enforced by the division. (2) The division shall treat a complaint alleging violation of this chapter, other than a complaint alleging a violation of only Section 6722, as a complaint charging a serious violation within the meaning of Section 6309, and shall investigate all of these complaints through onsite inspection. (3) During an onsite inspection of an outdoor place of agricultural employment, the division shall inform all employees of the prohibition on retaliation set forth in Section 6723. The division shall provide employees with written materials, in the language or languages spoken by the employees, setting forth a clear and concise summary of the requirements of this chapter and a means of contacting the division if the employer subsequently commits a retaliatory act or other violation of this chapter. (4) An employer shall be designated as a high hazardous industry employer within the meaning of Section 6314.1 if the division receives a complaint against the employer from an employee or an employee's representative alleging a violation of this chapter, unless the division investigates the complaint within 24 hours and finds it to be without foundation, or the division issues a citation against the employer for a violation of this chapter, unless the citation is withdrawn in its entirety. (5) The division shall require an employer to immediately correct any failure to provide water or shade as required by this chapter, regardless of the status of any related action or appeal. (b) (1)  An   In addition to any other available remedies, and, except as otherwise provided in this paragraph, irrespective of any action or omission of the division in the enforcement of this chapter, an  employee affected by an employer's failure to comply with this chapter may bring  an   a civil  action for  injunctive   any of the following:   (A)     Injunctive  relief  and is entitled to recover in a civil action all   .   (B)     All  damages caused by the failure to comply, including interest on those damages  , and civil   .   (C)     If the failure to comply had a direct effect upon the health or safety of an employee, civil  penalties as set forth in Section 6725  . This remedy shall be in addition to any other available remedy.   (2)     An employee may bring a civil action pursuant to this subdivision notwithstanding any action taken or not taken by the division in relation to the employer's compliance with this chapter. However, an employee may recover the civil penalties set forth in Section 6725 only   ,  to the extent that the division has not imposed and collected those penalties against the same employer for the same alleged violation as of the date the civil action is filed.  (3)  (2)  Fifty percent of  the   any  civil penalties recovered by the employee in a civil action brought pursuant to this subdivision shall be distributed to the division, with the remainder distributed to the employee. The entire amount of any damages recovered by the employee shall be distributed to the employee.  (3) Upon a showing in a civil action brought pursuant to this subdivision of an employer's failure to comply with any provision of this chapter, any prerequisites to the granting of injunctive relief shall be presumed to be satisfied.  (4) An employer who is found  in violation   to have violated any provision  of this chapter in a civil action brought pursuant to this subdivision shall be designated a high hazardous industry employer within the meaning of Section 6314.1, and that designation shall be withdrawn only if the judgment  against the employer  is vacated in its entirety. (5) An employee who prevails in a civil action brought pursuant to this subdivision is entitled to an award of reasonable attorney's fees and costs of suit, including expert witness fees. (c) An  enforcement  action or proceeding  , whether brought by the division or an employee,  may be brought pursuant to this section against all agricultural entities involved in the farming operation, including the farm operator. For purposes of this section, the acts or omissions of an agricultural employer shall be imputed to the farm operator on the real property used in whose farming operation the agricultural employer was acting at the time of the alleged violation of this chapter and that farm operator shall be jointly and severally liable with and to the same extent as the agricultural employer. (d) A signed statement obtained by the division from an employee that is made under penalty of perjury is admissible in an administrative enforcement proceeding brought pursuant to this section. 6725. (a) For a violation of Section 6721 or 6723, the civil penalties shall be as follows: (1) For each day on which the violation existed while one or more employees were working and the temperature did not exceed 80 degrees, the penalty shall be the product of five hundred dollars ($500) multiplied by the number of employees on the work crew at the time of the violation. (2) For each day on which the violation existed while one or more employees were working and the temperature exceeded 80 degrees but did not exceed 90 degrees, the penalty shall be the product of two thousand dollars ($2,000) multiplied by the number of employees on the work crew at the time of the violation. (3) For each day on which the violation existed while one or more employees were working and the temperature exceeded 90 degrees but did not exceed 100 degrees, the penalty shall be the product of five thousand dollars ($5,000) multiplied by the number of employees on the work crew at the time of the violation. (4) For each day on which the violation existed while one or more employees were working and the temperature exceeded 100 degrees, the penalty shall be the product of ten thousand dollars ($10,000) multiplied by the number of employees on the work crew at the time of the violation. (5) Notwithstanding paragraphs (1) to (4), inclusive, if the violation existed during any work shift when any employee suffered heat illness, the penalty shall be not less than fifty thousand dollars ($50,000). (6) Notwithstanding paragraphs (1) to (4), inclusive, no penalty shall exceed two hundred thousand dollars ($200,000). (b) (1) Except as otherwise provided in paragraph (2), for a violation of Section 6722, civil penalties shall be imposed in the amount of five hundred dollars ($500) multiplied by the number of days the violation existed while employees were working. (2) The penalty described in paragraph (1) shall not exceed ten thousand dollars ($10,000). (c) (1) A civil penalty imposed and calculated pursuant to subdivision (a) or (b) may be reduced by as much as 50 percent, if the violation did not exist during a work shift when an employee suffered heat illness. A reduction shall be based on the facts and circumstances of the violation, including the following considerations: (A) The culpability of the employer. (B) Whether an employee lacked access to water or shade at any time while the violation existed. (C) The size, sophistication, and financial strength of the employer. (D) The employer compliance history related to heat illness. (E) The degree of injury caused by the employer's current or past violations. (F) Any efforts by an employee or other person to secure the employer's compliance through means other than litigation. (G) Any expenses incurred by employees, the division, and others in investigating the employer's compliance. (2) The employer has the burden of proving the existence of facts justifying a reduction of the penalty pursuant to this subdivision. SEC. 4. The provisions of this act are severable. If any provision of this act or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application. SEC. 5. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.