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AB-73 Health emergencies: employment safety: agricultural workers: wildfire smoke.(2021-2022)

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Date Published: 07/08/2021 09:00 PM
AB73:v92#DOCUMENT

Amended  IN  Senate  July 08, 2021
Amended  IN  Senate  June 29, 2021
Amended  IN  Senate  June 28, 2021
Amended  IN  Assembly  May 24, 2021
Amended  IN  Assembly  April 12, 2021
Amended  IN  Assembly  March 29, 2021
Amended  IN  Assembly  February 02, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 73


Introduced by Assembly Members Robert Rivas, Eduardo Garcia, Lorena Gonzalez, and Kalra
(Principal coauthor: Senator Caballero)
(Coauthors: Assembly Members Aguiar-Curry, Bloom, Cristina Garcia, Luz Rivas, Santiago, Stone, and Wood)

December 07, 2020


An act to amend Section 131021 of the Health and Safety Code, and to add Part 12 (commencing with Section 9110) to Division 5 of the Labor Code, relating to employment safety, and declaring the urgency thereof, to take effect immediately.


LEGISLATIVE COUNSEL'S DIGEST


AB 73, as amended, Robert Rivas. Health emergencies: employment safety: agricultural workers: wildfire smoke.
(1) Existing law establishes the State Department of Public Health (department) to implement various programs throughout the state relating to public health, including licensing and regulating health facilities and control of infectious diseases. Existing law requires the department and the Office of Emergency Services, in coordination with other state agencies, to, upon appropriation and as necessary, establish a personal protective equipment (PPE) stockpile. Existing law requires the department to establish guidelines for the procurement, management, and distribution of PPE, 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, as defined, in the state during a 90-day pandemic or other health emergency.
This bill would specifically include wildfire smoke events among health emergencies for these purposes. The bill would include agricultural workers, as defined, in the definition of essential workers.
Existing law also establishes the Personal Protective Equipment Advisory Committee (committee), consisting of representatives from, among other groups, an association representing skilled nursing facilities, a statewide association representing physicians, 2 representatives of labor organizations that represent health care workers, and 2 representatives of labor organizations that represent essential workers, as defined, to make recommendations to the department for the development of guidelines for the procurement, management, and distribution of PPE, as specified.
This bill would include agricultural workers within the definition of essential workers, and would require the committee to, in addition, include a representative of a labor organization representing agricultural workers and a representative of an organization that represents agricultural employers. The bill would also require the department to report to the Legislature regarding the PPE stockpile within 6 months of the effective date of these provisions.
(2) Existing law establishes the Division of Occupational Safety and Health and the Occupational Safety and Health Standards Board within the Department of Industrial Relations and sets forth their powers and duties relating to the adoption of health and safety standards for workers. Under existing law, certain violations of a standard, order, or special order pursuant to these provisions are crimes.
Existing regulations of the division protect employees exposed to wildfire smoke and include control by respiratory protective equipment among the methods to control harmful exposure.
This bill would, among other things, require the division to designate wildfire smoke strike teams within the appropriate regional offices and authorize the division to deploy the teams to enforce wildfire smoke protection regulations under specified conditions with regard to agricultural workplaces and agricultural employees.
The bill would require the division, by January 1, 2023, to develop and distribute a sample template document providing prescribed air quality training and information, including, but not limited to, how to use N95 respirators safely. The bill would require employers to periodically conduct the training. The bill would, in addition, commencing January 1, 2023, require refresher training during wildfire smoke emergencies and prior to distribution of the respirators. The bill would require the template and training be consistent with regulations adopted by the board.
Because a violation of certain safety and health standards or orders constitutes a crime, this bill would impose a state-mandated local program.
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.
This bill would declare that it is to take effect immediately as an urgency statute.
Vote: 2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 Section 131021 of the Health and Safety Code is amended to read:

131021.
 (a) The Legislature finds that having access to a statewide stockpile of personal protective equipment in the event of a pandemic, wildfire smoke event, 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.
(b) The following definitions apply for purposes of this section:
(1) “Department” means the State Department of Public Health.
(2) “Office” means the Office of Emergency Services.
(3) “Agricultural worker” means a person employed in any of the following:
(A) An agricultural occupation, as defined in Wage Order No. 14 of the Industrial Welfare Commission.
(B) An industry preparing agricultural products for the market, on the farm, as defined in Wage Order No. 13 of the Industrial Welfare Commission.
(C) An industry handling products after harvest, as defined in Wage Order No. 8 of the Industrial Welfare Commission.
(4) “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 State Public Health Officer or the Director of the Office of Emergency Services deems vital to public health and safety, as well as economic and national security, including, but not limited to, agricultural workers.
(5) “Health care worker” means any worker who provides direct patient care and services directly supporting patient care, including, but not limited, to physicians, pharmacists, clinicians, nurses, aides, technicians, janitorial and housekeeping staff, food services workers, and nonmanagerial administrative staff.
(6) “Personal protective equipment” or “PPE” means protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, 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, shoe coverings, and the equipment identified by or otherwise necessary to comply with Section 5199 of Title 8 of the California Code of Regulations.
(7) “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.
(8) “Stockpile” means the personal protective equipment stockpile created pursuant to subdivision (c).
(c) Within one year of the effective date of this section, the department and office, in coordination with other state agencies, shall establish a PPE stockpile, upon appropriation and as necessary.
(d)  The department shall also establish guidelines for procurement, management, and distribution of PPE from the department. The department and office shall consider the recommendations of the Personal Protective Equipment Advisory Committee created pursuant to subdivision (f) in developing these guidelines. 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, including, but not limited to, wildfire smoke events.
(2) The shelf life of each type of PPE that may be obtained from the department and how to restock a portion of each type of PPE to ensure the procurements consist 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, including, but not limited to, wildfire smoke events.
(4) Lessons learned from previous pandemics and state emergencies, including, but not limited to, supply procurement, management, and distribution.
(5) Guidance on how to define essential workers based upon different hazards.
(6) Geographical distribution of PPE storage.
(7) Guidance on how to establish policies and standards for PPE surge capacity to ensure that workers have access to an adequate supply of PPE during a pandemic or other health emergency, including, but not limited to, wildfire smoke events.
(8) The policies and funding that would be required for the state to establish a PPE stockpile.
(9) How distribution from any procurement shall be prioritized in the event that there is insufficient PPE to meet the needs of providers or employers of essential workers, including consideration of the following:
(A) The provider or employer is in a location with a high share of low-income residents.
(B) 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.
(C) 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.
(D) The provider or employer is in a county with a high infection rate or high hospitalization rate related to the declared emergency.
(e) The development of the guidelines shall be informed by the recommendations of the Personal Protective Equipment Advisory Committee pursuant to subdivision (f). The guidelines shall not establish policies or standards that are less protective or prescriptive than any federal, state, or local law on PPE standards.
(f) The Personal Protective Equipment Advisory Committee is hereby established. The advisory committee 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 a statewide association representing physicians.
(5) Two representatives of labor organizations that represent health care workers.
(6) Two representatives of labor organizations that represent nonagricultural essential workers, as defined by paragraph (4) of subdivision (b).
(7) One representative of a labor organization that represents agricultural workers, as defined by paragraph (3) of subdivision (b).
(8) One representative of an organization that represents agricultural employers.
(9) One representative from the personal protective equipment manufacturing industry.
(10) One consumer representative.
(11) One representative from an association representing counties.
(12) One representative from the State Department of Public Health.
(13) One representative from the Office of Emergency Services.
(14) One representative from the Emergency Medical Services Authority.
(15) One representative from the State Department of Social Services.
(g) The Director of the Office of Emergency Services or their designee shall appoint the representatives from paragraphs (1) through (11), inclusive, of subdivision (f).
(h) The Personal Protective Equipment Advisory Committee shall make recommendations to the office and department necessary to develop the guidelines required pursuant to subdivision (d).
(i) Nothing in this section alters an employer’s duty to provide respirators as required by Section 5141.1 of Title 8 of the California Code of Regulations.
(j) The department shall report to the Legislature, within six months of the effective date of the amendments to this section made by the act adding this subdivision, with regard to the amount of PPE in the stockpile, the amount of PPE from the stockpile that has been used, and the amount of anticipated future usage. The report shall be made pursuant to Section 9795 of the Government Code.

SEC. 2.

 Part 12 (commencing with Section 9110) is added to Division 5 of the Labor Code, to read:

PART 12. Agricultural Workers

9110.
 (a) For purposes of this section, the following terms have the following meanings:
(1) “AQI” means air quality index and refers to the method used by the United States Environmental Protection Agency to report air quality on a real-time basis, utilizing the chart in subdivision (b) of Section 5141.1 of Title 8 of the California Code of Regulations.
(2) “Agricultural employee” means a person employed in any of the following:
(A) An agricultural occupation, as defined in Wage Order No. 14 of the Industrial Welfare Commission.
(B) An industry preparing agricultural products for the market, on the farm, as defined in Wage Order No. 13 of the Industrial Welfare Commission.
(C) An industry handling products after harvest, as defined in Wage Order No. 8 of the Industrial Welfare Commission.
(3)  “Board” means the Occupational Safety and Health Standards Board.
(4) “PM 2.5” means particulate matter that is 2.5 microns or smaller.
(5) “Wildfire” means an unplanned, unwanted wildland fire, including unauthorized human-caused fires, escaped wildland fire use events, escaped prescribed fire projects, and all other wildland fires when the objective is to extinguish the fire.
(b) (1) The division shall designate “wildfire smoke strike teams” within the appropriate regional offices. These teams may be deployed to inspect agricultural workplaces for compliance with Section 5141.1 of Title 8 of the California Code of Regulations when both of the following conditions apply:
(A) The current AQI for PM 2.5 is 151 or greater, regardless of the AQI for other pollutants.
(B) The wildfire conditions in the region are such that it would be reasonable to anticipate that agricultural employees within the region may be exposed to wildfire smoke.
(2) Nothing in this section directs the division to delay inspections or investigations of hazards, violations, complaints, or accidents that a regional manager or district manager determines would be more likely to cause death or serious physical harm than violations of Section 5141.1 of Title 8 of the California Code of Regulations.
(c) (1) By January 1, 2023, the division shall develop, and shall thereafter distribute, a sample template document providing specific air quality training and information in both English and Spanish on all of the following issues:
(A) What resources employers use to determine unhealthy air quality.
(B) What type of personal protective equipment agricultural employees are entitled to when working in hazardous air quality conditions.
(C) How to use N95 respirators safely.
(D) Signs and symptoms of illness related to unhealthy air exposure and respirator failure or issues.
(E) The right of an employee to request and obtain medical treatment without fear of reprisal.
(2) The information shall be designed to be easily understood by agricultural employees from a variety of ethnic and cultural backgrounds, and various education levels, including the use of pictograms, as necessary. The information shall be made widely and easily accessible throughout the year, including in physical formats at the worksite and via the division’s internet website.
(3) The training shall be provided periodically by the employers for all management staff and agricultural employees periodically. and supervisors of agricultural employees. The frequency shall be established by regulations adopted by the board and shall be based upon the regional wildfire risk.
(4) The information provided in the sample template document developed pursuant to this subdivision shall be consistent with applicable workplace safety regulations adopted by the board.
(d) Commencing January 1, 2023, in addition to the periodic training required in subdivision (c), during a wildfire smoke emergency and prior to distribution of the N95 respirators, an agricultural employer shall conduct refresher training, as developed by regulations adopted by the board, for all managers and agricultural employees and supervisors of agricultural employees, specifically focused on the safe and effective use of the N95 respirators.

SEC. 3.

 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.

SEC. 4.

 This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to protect the health and safety of essential agricultural workers from smoke inhalation during what has become an extended wildfire season, it is necessary that this act take effect immediately.