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AB-2334 Occupational injuries and illness: employer reporting requirements: electronic submission.(2017-2018)

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Date Published: 08/17/2018 04:51 PM
AB2334:v95#DOCUMENT

Amended  IN  Senate  August 17, 2018
Amended  IN  Senate  June 20, 2018
Amended  IN  Assembly  May 25, 2018
Amended  IN  Assembly  March 15, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2334


Introduced by Assembly Member Thurmond

February 13, 2018


An act to amend Sections 138.7, 3702.2, and 6317 of, and to add Sections 6410.1 and 6410.2 to, the Labor Code, relating to employment.


LEGISLATIVE COUNSEL'S DIGEST


AB 2334, as amended, Thurmond. Occupational injuries and illness: employer reporting requirements: electronic submission.
Existing law establishes a workers’ compensation system, administered by the Administrative Director of the Division of Workers’ Compensation, within the Department of Industrial Relations, to compensate an employee for injuries sustained in the course of his or her employment. Existing law prohibits a person or public or private entity who is not a party to a claim for workers’ compensation benefits from obtaining individually identifiable information, as defined, that is obtained or maintained by the division regarding that claim. Existing law permits, however, various state entities to use that information to carry out their duties.
This bill would permit the Office of Self-Insurance Plans of the Department of Industrial Relations to use individually identifiable information as necessary to carry out its duties. The bill would authorize the office to make public the identity of claims administrators, joint powers authorities, and individual public self-insured employers, provided that individually identifiable claimant information or any portion of excess insurance coverage information that contains any individually identifiable claimant information is not made public. duties, as specified.
Existing law requires, for purposes of the workers’ compensation system, every employer except the state to secure the payment of compensation in one or more ways, including by securing from the Director of Industrial Relations a certificate of consent to self-insure either as an individual employer, or as one employer in a group of employers. Existing law requires all self-insured employers to file a self-insurer’s annual report in a form prescribed by the director. Existing law requires the director to annually prepare an aggregated summary of all self-insured employer liability to pay compensation reported on the self-insured employers’ annual reports, including a separate summary for public and private employer self-insurers, and requires the aggregated summaries to be made available to the public on the self-insurance section of the department’s Internet Web site.
This bill would authorize the director to release or make available to the public publish information regarding the costs of administration, workers’ compensation benefit expenditures, and solvency and performance of public self-insured employers’ workers’ compensation programs, as specified.
Existing law gives the Division of Occupational Safety and Health, within the department, the power, jurisdiction, and supervision over every employment and place of employment in this state, which is necessary to adequately enforce and administer all laws requiring that employment and places of employment be safe, and requiring the protection of the life, safety, and health of every employee in that employment or place of employment. Existing law requires the division to enforce all occupational safety and health standards, as specified, and to issue a citation for a violation relating to those standards. Existing law prohibits the division from issuing a citation more than 6 months after the occurrence of the violation.
This bill would provide that an occurrence, for purposes of issuing a citation, continues until it is corrected, the division discovers the violation, or the duty to comply with the requirement is that was violated no longer applicable. exists.
Existing law requires an employer to furnish a place of employment that is safe and healthful for employees. Existing law requires an employer to file a report of every occupational injury or occupational illness, as defined, of each employee that results in lost time beyond the date of the injury or illness, and that requires medical treatment beyond first aid, with the Department of Industrial Relations, or in the case of an insured employer, with the insurer, on a form prescribed by the department. Under existing law, an employer who violates occupational safety and health provisions is guilty of a misdemeanor, except where another penalty is specifically provided.
This bill would require the division to monitor the rulemaking and implementation of the United States Department of Labor’s Occupational Safety and Health Administration’s Improve Tracking of Workplace Injuries and Illnesses rule with respect to the electronic submission of workplace injury and illness data. The bill would also require, require the division, if the division determines that the Occupational Safety and Health Administration has eliminated or substantially diminished this federal submission requirement, the division to adopt regulations requiring employers who are required to keep injury and illness records under specified state regulations to electronically report data to the division as was required to be reported to OSHA by the Improve Tracking of Workplace Injuries and Illnesses rule. within 90 days of the determination, to convene an advisory committee, as specified, to evaluate how to implement changes necessary to protect the goals of the Improve Tracking of Workplace Injuries and Illnesses rule.
The bill would provide legislative findings and declarations in support of these provisions.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares all of the following:
(a) The United States Department of Labor’s Occupational Safety and Health Administration adopted the Improve Tracking of Workplace Injuries and Illnesses rule in 2016.
(b) The Improve Tracking of Workplace Injuries and Illnesses rule is an important step to improve workplace safety through expanded access to timely, establishment-specific injury and illness information for employers, employees, employee representatives, potential employees, customers, and public health researchers.
(c) In late fall of 2017, the United States Department of Labor’s Occupational Safety and Health Administration issued a Notice of Proposed Rulemaking to relax these workplace injury and illness reporting requirements.
(d) To help increase awareness and understanding of workplace health and safety issues, existing state law requires specified employers, including fire departments and state and local governments, to report occupational injuries and illnesses to the Division of Occupational Safety and Health and subsequently post annual summaries of those work-related injuries and illnesses in a visible, easily accessible area at each worksite.
(e) While posting of injury information at each worksite is important, specific workplace injury and illness information is not accessible to the public and prospective employees in an easily accessible database on the Internet.
(f) Reporting employers are required to maintain injury and illness records for five years, but there is no requirement that such records or their related annual summaries be separately provided to or maintained by a central clearinghouse, where the public may view, sort, and track the information in an easily accessible format online.
(g) Workplace illness and injury reporting should be robust and easily accessible. Public access to workplace injury and illness data will provide opportunities to advance the fields of injury and illness causation and prevention research.

SEC. 2.

 Section 138.7 of the Labor Code is amended to read:

138.7.
 (a) Except as expressly permitted in subdivision (b), a person or public or private entity not a party to a claim for workers’ compensation benefits shall not obtain individually identifiable information obtained or maintained by the division regarding that claim. For purposes of this section, “individually identifiable information” means any data concerning an injury or claim that is linked to a uniquely identifiable employee, employer, claims administrator, or any other person or entity.
(b) (1) (A) The administrative director, or a statistical agent designated by the administrative director, may use individually identifiable information for purposes of creating and maintaining the workers’ compensation information system as specified in Section 138.6.
(B) The administrative director may publish the identity of claims administrators in the annual report disclosing the compliance rates of claims administrators pursuant to subdivision (d) of Section 138.6.
(2) (A) The State Department of Public Health may use individually identifiable information for purposes of establishing and maintaining a program on occupational health and occupational disease prevention as specified in Section 105175 of the Health and Safety Code.
(B) (i) The State Department of Health Care Services may use individually identifiable information for purposes of seeking recovery of Medi-Cal costs incurred by the state for treatment provided to injured workers that should have been incurred by employers and insurance carriers pursuant to Article 3.5 (commencing with Section 14124.70) of Chapter 7 of Part 3 of Division 9 of the Welfare and Institutions Code.
(ii) The Department of Industrial Relations shall furnish individually identifiable information to the State Department of Health Care Services, and the State Department of Health Care Services may furnish the information to its designated agent, provided that the individually identifiable information shall not be disclosed for use other than the purposes described in clause (i). The administrative director may adopt regulations solely for the purpose of governing access by the State Department of Health Care Services or its designated agents to the individually identifiable information as defined in subdivision (a).

(C)The Office of Self-Insurance Plans of the Department of Industrial Relations may use individually identifiable information as necessary to carry out its duties, including evaluating the costs of administration, workers’ compensation benefit expenditures, and solvency and performance of the public self-insured employers’ workers’ compensation programs. Notwithstanding the definition of individually identifiable information set forth in subdivision (a), the Office of Self-Insurance Plans may make public the identity of claims administrators, joint powers authorities, and individual public self-insured employers provided that individually identifiable claimant information or any portion of excess insurance coverage information that contains any individually identifiable claimant information is not made public.

(3) (A) Individually identifiable information may be used by the Division of Workers’ Compensation and the Division of Occupational Safety and Health as necessary to carry out their duties. The administrative director shall adopt regulations governing the access to the information described in this subdivision by these divisions. Any regulations adopted pursuant to this subdivision shall set forth the specific uses for which this information may be obtained.
(B) Individually identifiable information maintained in the workers’ compensation information system and the Division of Workers’ Compensation may be used by researchers employed by or under contract to the Commission on Health and Safety and Workers’ Compensation as necessary to carry out the commission’s research. The administrative director shall adopt regulations governing the access to the information described in this subdivision by commission researchers. These regulations shall set forth the specific uses for which this information may be obtained and include provisions guaranteeing the confidentiality of individually identifiable information. Individually identifiable information obtained under this subdivision shall not be disclosed to commission members. Individually identifiable information obtained by researchers under contract to the commission pursuant to this subparagraph may not be disclosed to any other person or entity, public or private, for a use other than that research project for which the information was obtained. Within a reasonable period of time after the research for which the information was obtained has been completed, the data collected shall be modified in a manner so that the subjects cannot be identified, directly or through identifiers linked to the subjects.
(C) Individually identifiable information may be used by the Office of Self-Insurance Plans of the Department of Industrial Relations as necessary to carry out its duties, including evaluating the costs of administration, workers’ compensation benefit expenditures, and solvency and performance of the public self-insured employers’ workers compensation programs.
(4) The administrative director shall adopt regulations allowing reasonable access to individually identifiable information by other persons or public or private entities for the purpose of bona fide statistical research. This research shall not divulge individually identifiable information concerning a particular employee, employer, claims administrator, or any other person or entity. The regulations adopted pursuant to this paragraph shall include provisions guaranteeing the confidentiality of individually identifiable information. Within a reasonable period of time after the research for which the information was obtained has been completed, the data collected shall be modified in a manner so that the subjects cannot be identified, directly or through identifiers linked to the subjects.
(5) (A) This section shall not operate to exempt from disclosure any information that is considered to be a public record pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) contained in an individual’s file once an application for adjudication has been filed pursuant to Section 5501.5.
(B) Individually identifiable information shall not be provided to any person or public or private entity who is not a party to the claim unless that person identifies himself or herself or that public or private entity identifies itself and states the reason for making the request. The administrative director may require the person or public or private entity making the request to produce information to verify that the name and address of the requester is valid and correct. If the purpose of the request is related to preemployment screening, the administrative director shall notify the person about whom the information is requested that the information was provided and shall include the following in 12-point type:

“IT MAY BE A VIOLATION OF FEDERAL AND STATE LAW TO DISCRIMINATE AGAINST A JOB APPLICANT BECAUSE THE APPLICANT HAS FILED A CLAIM FOR WORKERS’ COMPENSATION BENEFITS.”

(C) Any residence address is confidential and shall not be disclosed to any person or public or private entity except to a party to the claim, a law enforcement agency, an office of a district attorney, any person for a journalistic purpose, or other governmental agency.
(D) This paragraph does not prohibit the use of individually identifiable information for purposes of identifying bona fide lien claimants.
(c) Except as provided in subdivision (b), individually identifiable information obtained by the division is privileged and is not subject to subpoena in a civil proceeding unless, after reasonable notice to the division and a hearing, a court determines that the public interest and the intent of this section will not be jeopardized by disclosure of the information. This section shall not operate to restrict access to information by any law enforcement agency or district attorney’s office or to limit admissibility of that information in a criminal proceeding.
(d) It is unlawful for any person who has received individually identifiable information from the division pursuant to this section to provide that information to any person who is not entitled to it under this section.

SEC. 3.

 Section 3702.2 of the Labor Code is amended to read:

3702.2.
 (a) All self-insured employers shall file a self-insurer’s annual report in a form prescribed by the director. Public self-insured employers shall provide detailed information as the director determines necessary to evaluate the costs of administration, workers’ compensation benefit expenditures, and solvency and performance of the public self-insured employer workers’ compensation programs, on a schedule established by the director. The director may grant deferrals to public self-insured employers that are not yet capable of accurately reporting the information required, giving priority to bringing larger programs into compliance with the more detailed reporting.
(b) To enable the director to determine the amount of the security deposit required by subdivision (c) of Section 3701, the annual report of a self-insured employer who has self-insured both state and federal workers’ compensation liability shall also set forth (1) the amount of all compensation liability incurred, paid-to-date, and estimated future liability under both this chapter and under the federal Longshore and Harbor Workers’ Compensation Act (33 U.S.C. Sec. 901 et seq.), and (2) the identity and the amount of the security deposit securing the employer’s liability under state and federal self-insured programs.
(c) The director shall annually prepare an aggregated summary of all self-insured employer liability to pay compensation reported on the self-insurers’ employers annual reports, including a separate summary for public and private employer self-insurers. The summaries shall be in the same format as the individual self-insured employers are required to report that liability on the employer self-insurer’s annual report forms prescribed by the director. The aggregated summaries shall be made available to the public on the self-insurance section of the department’s Internet Web site. This subdivision does not authorize the director to release or make available information regarding private self-insured employers that is aggregated by industry or business type, that identifies individual self-insured filers, or that includes any individually identifiable claimant information. The director may release or make available to the public publish information regarding the costs of administration, workers’ compensation benefit expenditures, and solvency and performance of public self-insured employers’ workers’ compensation programs, including, but not limited to, information aggregated by industry or business type, and that may contain data identifying individual public self-insured filers, their third-party administrators, and their joint powers authorities, as long as the information does not include any individually identifiable claimant information. For purposes of this section, “individually identifiable claimant information” means any data concerning an injury or claim that is linked to a uniquely identifiable employee, employee’s dependent, or a specific claim.
(d) The director may release a copy, or make available an electronic version, of the data contained in any public sector employer self-insurer’s annual reports received from an individual public entity self-insurer or from a joint powers authority employer and its membership. However, the release of any annual report information by the director shall not include any portion of any listing of open indemnity claims that contains individually identifiable claimant information, or any portion of excess insurance coverage information that contains any individually identifiable claimant information.

SEC. 4.

 Section 6317 of the Labor Code is amended to read:

6317.
 If, upon inspection or investigation, the division believes that an employer has violated Section 25910 of the Health and Safety Code or any standard, rule, order, or regulation established pursuant to Chapter 6 (commencing with Section 140) of Division 1 of the Labor Code, or any standard, rule, order, or regulation established pursuant to this part, it shall with reasonable promptness issue a citation to the employer. Each citation shall be in writing and shall describe with particularity the nature of the violation, including a reference to the provision of the code, standard, rule, regulation, or order alleged to have been violated. In addition, the citation shall fix a reasonable time for the abatement of the alleged violation. The period specified for abatement shall not commence running until the date the citation or notice is received by certified mail and the certified mail receipt is signed, or if not signed, the date the return is made to the post office. If the division officially and directly delivers the citation or notice to the employer, the period specified for abatement shall commence running on the date of the delivery.
A “notice” in lieu of citation may be issued with respect to violations found in an inspection or investigation which meet either of the following requirements:
(1) The violations do not have a direct relationship upon the health or safety of an employee.
(2) The violations do not have an immediate relationship to the health or safety of an employee, and are of a general or regulatory nature. A notice in lieu of a citation may be issued only if the employer agrees to correct the violations within a reasonable time, as specified by the division, and agrees not to appeal the finding of the division that the violations exist. A notice issued pursuant to this paragraph shall have the same effect as a citation for purposes of establishing repeat violations or a failure to abate. Every notice shall clearly state the abatement period specified by the division, that the notice may not be appealed, and that the notice has the same effect as a citation for purposes of establishing a repeated violation or a failure to abate. The employer shall indicate agreement to the provisions and conditions of the notice by his or her signature on the notice.
A notice shall not be issued in lieu of a citation if the violations are serious, repeated, willful, or arise from a failure to abate.
The director shall prescribe guidelines for the issuance of these notices.
The division may impose a civil penalty against an employer as specified in Chapter 4 (commencing with Section 6423) of this part. A notice in lieu of a citation may not be issued if the number of first instance violations found in the inspection (other than serious, willful, or repeated violations) is 10 or more violations.
A citation or notice shall not be issued by the division more than six months after the occurrence of the violation. For purposes of this section, an “occurrence” continues until it is corrected, or the division discovers the violation, or the duty to comply with the violated requirement is no longer applicable. ceases to exist.
The director shall prescribe procedures for the issuance of a citation or notice.
The division shall prepare and maintain records capable of supplying an inspector with previous citations and notices issued to an employer.

SEC. 5.

 Section 6410.1 is added to the Labor Code, to read:

6410.1.
 It is the intent of the Legislature that the division maintain strong workplace injury and illness reporting standards.

SEC. 6.

 Section 6410.2 is added to the Labor Code, to read:

6410.2.
 (a) The division shall monitor rulemaking and implementation of the United States Department of Labor’s Occupational Safety and Health Administration’s Improve Tracking of Workplace Injuries and Illnesses rule as published in the federal Register (81 FR 29624) with respect to the electronic submission of workplace injury and illness data.
(b) If the division determines that the Occupational Safety and Health Administration (OSHA) has eliminated or substantially diminished the requirement that employers electronically submit OSHA injury and illness data pursuant to 81 FR 29624, the division shall adopt regulations requiring employers who are required to keep injury and illness records under Article 2 (commencing with Section 14300) of Subchapter 1 of Chapter 7 of Division 1 of Title 8 of the California Code of Regulations to electronically report data to the division as was required to be reported to OSHA by the Improve Tracking of Workplace Injuries and Illnesses rule as it read on January 1, 2017. shall, within 90 days of the determination, convene an advisory committee to evaluate how to implement the changes necessary to protect the goals of the Improve Tracking of Workplace Injuries and Illnesses rule. The committee shall be composed of parties in both management and labor and include parties that are required to keep injury and illness records under Article 2 (commencing with Section 14300) of Subchapter 1 of Chapter 7 of Division 1 of Title 8 of the California Code of Regulations.
(c) This section does not require the disclosure of information prohibited under Section 6412.