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SB-275 Health Care and Essential Workers Protection Act: personal protective equipment.(2019-2020)



Current Version: 07/27/20 - Amended Assembly         Compare Versions information image


SB275:v95#DOCUMENT

Amended  IN  Assembly  July 27, 2020
Amended  IN  Assembly  June 17, 2020
Amended  IN  Assembly  February 13, 2020
Amended  IN  Assembly  January 06, 2020

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill
No. 275


Introduced by Senators Pan and Leyva

February 13, 2019


An act to add Section 12098.12 to the Government Code, to add Section 131021 to the Health and Safety Code, and to add Section 6403.1 to to, and to add and repeal Section 6403.2 of, the Labor Code, relating to personal protective equipment, and making an appropriation therefor.


LEGISLATIVE COUNSEL'S DIGEST


SB 275, as amended, Pan. Health Care and Essential Workers Protection Act: personal protective equipment.
Existing law establishes the State Department of Public Health to implement various programs throughout the state relating to public health, including licensing and regulating health facilities and control of infectious diseases.
This bill, the Health Care and Essential Workers Protection Act, would require the State Department of Public Health to establish a personal protective equipment (PPE) stockpile to ensure an adequate supply of PPE for health care workers and essential workers, as defined, and would require the stockpile to be at least sufficient for a 90-day pandemic or other health emergency. The bill would require the department to establish guidelines for the procurement of the PPE stockpile, taking into account, among other things, the amount of each type of PPE that would be required for all health care workers and essential workers in the state during the pandemic or other health emergency, which would represent the amount of PPE to be maintained in the stockpile.
The bill would require providers, health care employers, including clinics, health facilities, and home health agencies, to maintain a stockpile of unexpired PPE for use in the event of a declared state of emergency and would require the stockpile to be at least sufficient for a 90-day 30-day, 60-day, or 90-day pandemic or other health emergency. emergency, according to specified deadlines. The bill would assess a civil penalty on a provider health care employer who violates that requirement of up to $25,000 for each violation. violation, as specified. The bill would declare a provider’s health care employer’s failure to provide PPE to its health care workers upon reasonable request to be an independent violation of the bill’s requirements. The bill would authorize the Department of Industrial Relations to exempt a health care employer from the above-required civil penalties if the department determines that supply chain limitations make meeting the mandated level of supplies infeasible and the health care employer has made a reasonable attempt to obtain PPE, as specified.
The bill would require the Department of Industrial Relations to adopt regulations, in consultation with the State Department of Public Health, setting forth requirements for the PPE stockpile, and would authorize the Department of Industrial Regulations to incorporate by reference existing guidance from the department and from the federal Occupational Safety and Health Administration regarding standards for PPE usage. The bill would require a provider to procure at least 25% of its PPE from in-state manufacturers, to the extent permitted by federal law, as specified.
The bill would also establish the Personal Protective Equipment Advisory Committee (committee) to be comprised of 8 members, as specified, appointed by the Secretary of Labor. The bill would require the Department of Industrial Relations to submit a report to the Legislature, on or before May 30, 2021, including, among other recommendations, recommendations regarding the type and amount of PPE needed by health care employers to ensure compliance with public health and safety standards and would require the committee to provide recommendations to the department necessary for the report.
Existing law establishes the Made in California Program within the Governor’s Office of Business and Economic Development, to encourage consumer product awareness and to foster purchases of high-quality products made in California. Existing law creates the Made in California Fund within the State Treasury, consisting of donations and other moneys to be used for the purposes of the Made in California Program, as specified.
This bill would require the office, as a part of the Made in California Program, to encourage in-state production of PPE in order to assist the State Department of Public Health and providers in complying with the bill’s requirements. The bill would create the Health Care Workforce Protection Account within the Made in California Fund, consisting of donations and other moneys, for the exclusive purpose of promoting the production of PPE. The bill would continuously appropriate the donated moneys in the account for the purpose of implementing those provisions, thereby making an appropriation. The bill would require any other funds deposited and maintained in the account to be available for the same purpose, upon appropriation by the Legislature. The bill would declare that its provisions are severable.
Vote: MAJORITY   Appropriation: YES   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 This act shall be known, and may be cited, as the Health Care and Essential Workers Protection Act.

SEC. 2.

 Section 12098.12 is added to the Government Code, to read:

12098.12.
 (a) (1) As part of the Made in California Program, the office shall encourage the in-state production of personal protective equipment, (PPE) in order to assist the State Department of Public Health in complying with Section 131021 of the Health and Safety Code and to assist providers in complying with Section 6403.1 of the Labor Code.
(2) For purposes of this section, “personal protective equipment” and “providers” have the same meanings as defined in subdivision (c) of Section 131021 of the Health and Safety Code.
(b) The office may accept monetary donations or other donations from businesses, nonprofit organizations, or individuals for the purpose of implementing this section. These donations shall be deposited in the account established in subdivision (c).
(c) The Health Care Workforce Protection Account is hereby created within the Made in California Fund established by subdivision (h) of Section 12098.10. Moneys deposited into the account shall be used exclusively for the promotion of in-state production of PPE for the purposes described in this section, Section 131021 of the Health and Safety Code, and Section 6403.1 of the Labor Code. The office shall use funds deposited into the account to provide grants, loans, loan guarantees, and other incentives for projects that increase capacity for the in-state manufacturing of PPE. Notwithstanding Section 13340, funds deposited and maintained in the account that were donated pursuant to subdivision (b) are continuously appropriated, without regard to fiscal years, to the director for the purposes of implementing this section. Any other funds deposited and maintained in the account shall be available, subject to appropriation by the Legislature, for purposes of implementing this section.

SEC. 3.

 Section 131021 is added to the Health and Safety Code, to read:

131021.
 (a) The Legislature finds that having access to a statewide stockpile of personal protective equipment in the event of a pandemic or other health emergency is vital to the health and safety of its health care and essential workers, as well as the general population, which both relies on this workforce and is susceptible to disease transmission should members of this workforce needlessly be infected with transmissible disease. Moreover, the Legislature finds that having in-state production capacity for personal protective equipment is vital to ensuring access to that equipment in the event of a pandemic or other health emergency, in light of likely national and global supply chain disruption.
(b) The department shall establish a personal protective equipment (PPE) stockpile to ensure an adequate supply of PPE for all health care workers and essential workers in the state that is at least sufficient for a 90-day pandemic or other health emergency.
(c) The following definitions apply for purposes of this section:
(1) “Department” means the State Department of Public Health.
(2) “Essential workers” means primary and secondary school workers, workers at detention facilities, as defined in Section 9500 of the Penal Code, in-home support providers, childcare providers, government workers whose work with the public continues throughout the crisis, and workers in other positions that the department, in its sole discretion, deems vital to public health and safety, as well as economic and national security.
(3) “Health care worker” means any worker employed to work at or by a provider to provide direct patient care and services directly supporting patient care, including, but not limited, to physicians, clinicians, nurses, aides, technicians, janitorial and housekeeping staff, food services workers, and nonmanagerial administrative staff.
(4) “Personal protective equipment” or “PPE” means protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers provided and used wherever it is necessary by reason of hazards of processes or environment, biological hazards, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact, including, but not limited to, N95 and other filtering facepiece respirators, elastomeric air-purifying respirators with appropriate particulate filters or cartridges, powered air purifying respirators, disinfecting and sterilizing devices and supplies, medical gowns and apparel, face masks, surgical masks, face shields, gloves, and the equipment identified by or otherwise necessary to comply with Sections 3380 and 5199 of Title 8 of the California Code of Regulations and Subpart I (commencing with Section 1910.132) of Part 1910 of Title 29 of the Code of Federal Regulations, as in effect on May 19, 2020.
(5) “Provider” means a licensed clinic, as described in Chapter 1 (commencing with Section 1200), an outpatient setting, as described in Chapter 1.3 (commencing with Section 1248) of, a health facility as described in Chapter 2 (commencing with Section 1250) of, or a county medical facility, as described in Chapter 2.5 (commencing with Section 1440) of, Division 2, a home health agency, a physician’s office, a professional medical corporation, a medical partnership, a medical foundation, a rural health clinic, as defined in Section 1395x(aa)(2) of Title 42 of the United States Code, or a federally qualified health center, as defined in Section 1395x(aa)(4) of Title 42 of the United States Code, and any other entity that provides medical services in California.
(6) “Stockpile” means the personal protective equipment stockpile created pursuant to subdivision (b).
(d) The department shall establish guidelines for procurement of PPE for the stockpile. At a minimum, the guidelines shall take into account all of the following:
(1) The various types of PPE that may be required during a pandemic or other health emergency.
(2) The shelf life of each type of PPE to be obtained for the stockpile and how to annually restock a portion of each type of PPE to ensure the stockpile consists of unexpired PPE.
(3) The amount of each type of PPE that would be required for all health care workers and essential workers in the state during a 90-day pandemic or other health emergency, which shall be the amount of PPE maintained in the stockpile.
(e) The department shall procure 20 percent of the full stockpile required according to paragraph (3) of subdivision (d) within one year after enactment of the act that adds this section. The department shall procure an additional 20 percent of the full stockpile in each of the subsequent four years, so that the department has procured 100 percent of the stockpile in five years.
(f) At least 25 percent of each type of PPE in the stockpile shall be manufactured in California. Distribution of the 25 percent required to be manufactured in California shall be exclusively made via resale, whether sold during a state of emergency pursuant to paragraph (1) of, or sold in the normal course of business pursuant to paragraph (2) of, subdivision (g). PPE that qualifies as being “substantially made” in California pursuant to Section 12098.10 of the Government Code presumptively counts towards the 25-percent threshold.
(g) The department shall distribute PPE from the stockpile only under either of the following two circumstances:
(1) If the Governor declares a state of emergency emergency, or a local emergency is declared, for which PPE will be required.
(2) To sell PPE from the stockpile, provided that the department acquires new PPE to offset any shortage resulting from the sale.
(h) The department shall establish guidelines regarding distribution of PPE from the stockpile, including, but not limited to, the timing and amount of PPE distribution, as well as the terms of sale should the department determine sale is appropriate. The guidelines shall provide, at a minimum, that in the event there is insufficient PPE to meet needs, distribution shall be prioritized for providers and employers of essential workers that meet any of the following qualifications:
(1) The provider or employer is in a location with a high share of low-income residents.
(2) The provider or employer is in a medically underserved area, as designated by the United States Department of Health and Human Services, Health Resources and Services Administration.
(3) The provider or employer disproportionately serves a medically underserved population, as designated by the United States Department of Health and Human Services, Health Resources and Services Administration.
(i) Within three months after enactment of the act that adds this section, the department shall provide the Department of Finance with an estimate of the cost to fully stock the stockpile and to maintain the stockpile for the subsequent five years. The department shall update these estimates on an annual basis.

SEC. 4.

 Section 6403.1 is added to the Labor Code, to read:

6403.1.
 (a) The Legislature hereby finds that having access to a provider-level health care employer-level stockpile of personal protective equipment in the event of a pandemic or other health emergency is vital to the health and safety of its health care workforce, as well as the general population, who both rely on the state’s health care workforce for care and are susceptible to disease transmission should members of the health care workforce needlessly be infected with transmissible disease. Moreover, the Legislature finds that having in-state production capacity for personal protective equipment is vital to ensuring access to personal protective equipment in the event of a pandemic or other health emergency, in light of likely national and global supply chain disruption.
(b) For purposes of this section:

(1)“PPE” and “health care worker” have the same meanings as defined in subdivision (c) of Section 131021 of the Health and Safety Code.

(1) “Department” means the Department of Industrial Relations.
(2) “Provider” “Health care employer” means a licensed clinic, as described in Chapter 1 (commencing with Section 1200) of, an outpatient setting, as described in Chapter 1.3 (commencing with Section 1248) of, a health facility as described in Chapter 2 (commencing with Section 1250) of, or a county medical facility, as described in Chapter 2.5 (commencing with Section 1440) of, Division 2 of the Health and Safety Code, a home health agency, a physician’s office with more than 25 employees, physicians, a professional medical corporation with more than 25 employees, physicians, a medical partnership with more than 25 employees, physicians, a medical foundation with more than 25 employees, physicians, a rural health clinic, as defined in Section 1395x(aa)(2) of Title 42 of the United States Code, or a federally qualified health center, as defined in Section 1395x(aa)(4) of Title 42 of the United States Code, and any other entity that provides medical services in California.
(3) “PPE” and “health care worker” have the same meanings as defined in subdivision (c) of Section 131021 of the Health and Safety Code.
(c) Every provider Except as provided in paragraph (1) of subdivision (d), a health care employer shall maintain a stockpile of unexpired PPE for use in the event of a state of emergency declaration by the Governor. The stockpile shall be at least sufficient for a 90-day pandemic or other health emergency. An employer A health care employer who violates the requirement to maintain a supply of unexpired personal protective equipment prescribed by this section shall be assessed a civil penalty of up to twenty-five thousand dollars ($25,000) for each violation. violation, as specified in Section 6428. A health care employer shall maintain a sufficient stockpile according to the following schedule:
(1) Commencing June 1, 2021, the stockpile shall be at least sufficient for a 30-day pandemic or other health emergency.
(2) Commencing June 1, 2022, the stockpile shall be at least sufficient for a 60-day pandemic or other health emergency.
(3) Commencing June 1, 2023, the stockpile shall be at least sufficient for a 90-day pandemic or other health emergency.
(d) (1) If a health care employer provides services exclusively in a facility or other setting controlled by another health care employer who is obligated to maintain a PPE stockpile, the health care employer who controls the facility or other setting shall be required to maintain the required PPE for the health care employer providing services in that facility or setting.
(2) If a health care employer’s stockpile dips below the mandated level of supplies as a result of the health care employer’s distribution of PPE to its health care workers during a state of emergency declared by the Governor or a declared local emergency for a pandemic or other health emergency, the health care employer shall not be subject to the civil penalty established by subdivision (c), provided the health care employer makes reasonable efforts, in the discretion of the department, to replenish its stockpile to the mandated level.
(3) The department may exempt a health care employer from a civil penalty prescribed by subdivision (c) if the department determines that supply chain limitations make meeting the mandated level of supplies infeasible and a health care employer has made a reasonable attempt, in the discretion of the department, to obtain PPE. The department may grant an exemption only until the supply chain limitation has been resolved and the department shall revisit that determination every 90 days.

(d)Every provider

(e) A health care employer shall provide PPE to its health care workers upon their reasonable request. Each day that an employer a health care employer delays in doing so shall constitute an independent violation of this section.

(e)

(f) The department, by regulation and in consultation with the State Department of Public Health, shall set forth requirements for provider health care employer stockpiles, including, but not limited to, the types and amount of PPE to be maintained by the provider health care employer based on the type and size of each provider, health care employer, as well as the composition of health care workers in its workforce. The regulations shall require each provider health care employer to maintain sufficient PPE for all health care workers. The regulations may incorporate by reference existing guidance of the department and of the federal Occupational Safety and Health Administration regarding standards for PPE usage, including, but not limited to, the guidance at Sections 3380 and 5199 of Title 8 of the California Code of Regulations and Subpart I (commencing with Section 1910.132) of Part 1910 of Title 29 of the Code of Federal Regulations, as in effect on May 19, 2020.

(f)To the extent permissible by federal law, a provider shall procure at least 25 percent of PPE for their stockpiles from in-state manufacturers. PPE that qualifies as “substantially made” in California pursuant to Section 12098.10 of the Government Code presumptively counts toward the 25-percent threshold.

SEC. 5.

 Section 6403.2 is added to the Labor Code, to read:

6403.2.
 (a) The Personal Protective Equipment Advisory Committee is hereby established. The Secretary of Labor or their designee shall appoint the membership of the advisory committee. The advisory committee shall consist of eight individuals who have experience in health care, public health, workers’ rights, or emergency preparedness and shall consist of the following:
(1) One representative of an association representing multiple types of hospitals and health systems.
(2) One representative of an association representing skilled nursing facilities.
(3) One representative of an association representing primary care clinics.
(4) One representative of an association representing physicians.
(5) Three representatives of a labor organization that represents health care workers.
(6) One representative of a labor organization that represents essential workers, as defined by paragraph (2) of subdivision (c) of Section 131021 of the Health and Safety Code.
(b) The Personal Protective Equipment Advisory Committee shall make recommendations to the department necessary for the department to provide the report required pursuant to subdivision (c).
(c) On or before May 30, 2021, the department shall submit a report to the Legislature based on the recommendations of the Personal Protective Equipment Advisory Committee. The report shall include recommendations on implementation of the various requirements of the committee and shall include, but not be limited to, recommendations relating to both of the following:
(1) The type and amount of PPE needed by health care employer type, during a public health emergency, to ensure compliance to public health and safety standards.
(2) Guidance on who shall maintain PPE if multiple health care employers are located at the same physical facility.
(d) (1) A report to be submitted pursuant to subdivision (c) shall be submitted in compliance with Section 9795 of the Government Code.
(2) Pursuant to Section 10231.5 of the Government Code, this section is repealed on January 1, 2025.

SEC. 5.SEC. 6.

 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.