Senate to Consider Unnecessary Mandate

Paperwork Violation Poses No Employee Risk

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The Senate will consider a California Chamber of Commerce-opposed bill that imposes new unnecessary and burdensome duties on employers related to the employer’s written Injury and Illness Prevention Program.

AB 2895 (R. Hernández; D-West Covina) requires employers to keep a written copy of their workplace injury and illness prevention program (IIPP) at each worksite with more than three employees, make it available for inspection by any employee upon request, provide a written copy to employee representatives making a request, and separately inform employees of these rights.

Current law requires all employers to have an IIPP, which is meant to provide a roadmap for the employer to implement procedures to ensure employee safety in the workplace. The Division of Occupational Safety and Health (Cal/OSHA) reviews the IIPP to ascertain whether the program has been implemented properly.

AB 2895 confuses the purpose of the IIPP with the training and communications an employer develops as an outgrowth of its IIPP to keep workers safe.

In a departure from current practice making Cal/OSHA the exclusive enforcer of safety regulations, AB 2895 sets up a new enforcement scheme, creating injunctive action that could force employers to go to court for what amounts to a paperwork violation that presents no risk of injury or harm to employees.

Serious enforcement measures are now and should continue to be reserved for serious violations that put employees at risk of serious injury. A need for the bill has not been demonstrated.

An electronic or written copy of the IIPP available upon request should suffice regardless of whether the copy is in written form at the location; however, that is not allowed by this bill.

New Requirement

Further, the employer would be required to inform new employees upon hire—separately from other IIPP-required communication—in a language they understand, that the employee has the right to inspect the IIPP, and that the employee may have an authorized representative request a copy in writing as well.

This establishes a new requirement on employers to inform employees that could easily and most appropriately be placed into existing requirements to inform new employees regarding the IIPP, which is not allowed in the bill.

Programs and training derived from the IIPP are required to be in languages understood by the employees because those (not the program itself) are implementation components of the safety program that are delivered to employees.

AB 2895 also creates a new Cal/OSHA definition of authorized representative as anyone the employee designates as such, to receive a written copy of the employer’s plan.

A failure of the employer to provide the written copy of the program to the representative upon written request would be subject to Cal/OSHA enforcement and a citation, or injunctive relief that would require the employer to appear in court—which is unprecedented for enforcement of a Cal/OSHA violation. Outside representatives should be required to follow existing due process to obtain employer documents.

The provisions of AB 2895 are overly burdensome and punitive, particularly in light of the fact that the IIPP information will be of no use to employees because it consists primarily of the operational and logistical details of the employer’s plan. It is totally unreasonable as a new burden on employers that opens them up to penalty without harm or risk of exposure to employees.

Background

Implementing an IIPP as required by current law means employers must provide employees information regarding working safely through communication and training. The IIPP must include:

• A system for ensuring that employees comply with safe and healthy work practices.

• A system to communicate with employees in a form readily understandable by all affected employees on matters relating to occupational safety and health, including a system for employees to report hazards to the employer.

• Procedures for identifying and evaluating workplace hazards, including inspections.

• Training and instruction when the program is first established; to all new employees, for new job assignments; whenever new substances, processes, procedures or new equipment are introduced; whenever the employer is made aware of a new or previously unrecognized hazard; and for supervisors to be familiar with the hazards to which their employees may be exposed.

• Documentation of specified actions taken to comply.

Cal/OSHA enforces all occupational safety and health regulations and has a penalty structure for violators, imposing the greatest penalties for those violations that put employees at the most risk. Furthermore, Labor Code sections 6423 and 6425 provide for additional penalties and enforcement actions for the most egregious violators.

The Private Attorneys General Act allows employees to pursue civil penalties through the legal system when agencies do not have the resources to do so.

Creating a new enforcement scheme centered around employers providing documentation to employees and their representatives, thereby creating a “violation” that does not cause a hazard or harm to the employee, nor has a demonstrated need, sets a public policy precedent that is unnecessary and unwarranted.

Action Needed

AB 2895 currently awaits action by the Senate. August 31 is the deadline for each house to pass legislation to the Governor’s desk.

Contact your senators and urge them to vote no on AB 2895.

Staff Contact: Marti Fisher

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Marti Fisher
About Marti Fisher
Marti Fisher joined the CalChamber in January 2006 as a policy advocate. She leads CalChamber advocacy on unemployment insurance, immigration, occupational safety and tourism. She has specialized in workers' compensation, small business, and banking and finance issues. From October 2006 to December 2012, she headed CalChamber advocacy on health care issues. Fisher brought to CalChamber more than 15 years of experience in occupational safety and advocacy. She earned a B.A. in public administration from California State University, Chico, and an M.B.A. from California State University, Sacramento.