CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2537

Author:(Rodriguez)

As Amended Ver:August 25, 2020

Majority vote

SUMMARY:

Requires an employer, as defined, to maintain, beginning April 1, 2021, a stockpile of specified protective equipment for specified workers in an amount equal to three months of normal consumption.

The Senate Amendments:

1. Define "employer" as a person or organization that employs workers in the public or private sector to provide direct patient care in a general acute care hospital.
2. Clarify that "personal protective equipment" means the equipment and devices necessary to comply with Section 3380 and 5199 of Title 8 of the California Code of Regulations, provided those requirements are at least as protective as those sections read on May 4, 2020.
3. Provide that an employer shall supply personal protective equipment (PPE) to employees who provide direct patient care or provide services that directly support patient care in a general acute care hospital.
4. Provide that beginning April 1, 2021, an employer must maintain a stockpile of the following equipment in an amount equal to three months of normal consumption: N95 filtering facepiece respirators, powered air-purifying respirators with high efficiency particulate air filters, elastometric air-purifying respirators and appropriate particulate filters or cartridges, surgical masks, isolation gowns, eye protection, and shoe coverings.
5. Provide that single-use equipment must be unexpired, new, and not previously worn or used.
6. Require an employer to establish and implement written procedures for determining the quantity and types of equipment used in its normal consumption.
7. Provide that an employer must provide an inventory of its stockpile and a copy of its written procedures for determining in normal consumption to the Division of Occupational Safety and Health (Cal/OSHA) upon request.
8. Provide that an employer may be exempt from the $25,000 civil penalty for failing to maintain an adequate supply of equipment if the Department of Industrial Relations (DIR) determines that the employer could not meet the requirements due to reasons beyond the employer's control.
9. Provide that if an employer provides health care services in a facility controlled by another employer who is obligated to maintain a stockpile of PPE, the employer who controls the facility must maintain the required PPE for the employer providing health care services in that facility.
10. Provide that on or before January 15, 2021, an employer, except for general acute care hospitals under the jurisdiction of the California Department of State Hospitals, must be prepared to report, under penalty of perjury, its highest seven-day consecutive daily average consumption of PPE during the 2019 calendar year, upon request from DIR.
11. Provide that state hospitals must make available their highest seven-day consecutive daily average consumption of PPE during the 2019 calendar year upon request from Cal/OSHA.
12. Provide that Cal/OSHA may enforce an alleged violation of these provisions using its citation procedures.

COMMENTS:

The nationwide supply shortage of personal protective equipment during this global pandemic is well-documented. Due to this shortage, frontline healthcare workers have reported being required to preserve PPE by re-using PPE. According the California Department of Public Health, as of August 26, 2020, local health departments have reported 31,115 confirmed positive cases of COVID-19 in health care workers and 150 deaths statewide. This bill seeks to protect healthcare workers from further spread of COVID-19 as well as ensure adequate supply of PPE to prepare for the future.

According to the Author:

"We are currently experiencing something we haven't before and healthcare workers are at the frontlines of it all. While dealing with this pandemic the last thing our workers should be worried about is whether or not, they will be protected from exposure. We must protect those providing care so that they too can continue to do their work."

Arguments in Support:

California Nurses Association/National Nurses United, sponsor of the bill, argues "Title [8 of the California Code of Regulations], particularly Sections 3380 and 5199, require health care employers to provide PPE to workers, with no costs to workers, and ensure that the equipment is effectively used. Also, the US Department of Labor and Department of Health and Human Services have encouraged employers to stockpile face masks and respirators in advance of a pandemic. It is clear now that manufacturing capacity at the time of an outbreak does not meet expected demand during a pandemic."

Arguments in Opposition:

The California Children's Hospital Association argues "the amount of equipment required for 'normal consumption' will be difficult, if not impossible, for children's hospitals to determine. The amount of equipment needed in any given situation will depend on the types of patients cared for and how different patient populations are impacted by a particular condition, the rate of use of PPE, the need to plan for excess surge capacity, changing regulatory requirements and more. All of these are dynamic and can change week to week or month to month, and we worry our members could be unfairly penalized for failing to foresee and stockpile for every possible scenario they might face in the future."

FISCAL COMMENTS:

Unknown

VOTES:

ASM LABOR AND EMPLOYMENT: 5-1-1

YES: Kalra, Carrillo, Gonzalez, Jones-Sawyer, Luz Rivas

NO: Flora

ABS, ABST OR NV: Diep

ASM APPROPRIATIONS: 13-3-2

YES: Gonzalez, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, Petrie-Norris, McCarty, Robert Rivas

NO: Bigelow, Megan Dahle, Voepel

ABS, ABST OR NV: Diep, Fong

ASSEMBLY FLOOR: 57-14-8

YES: Aguiar-Curry, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Burke, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooper, Daly, Eggman, Frazier, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Jones‑Sawyer, Kalra, Kamlager, Levine, Limón, Low, Maienschein, McCarty, Medina, Mullin, Nazarian, O'Donnell, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Waldron, Weber, Wicks, Wood, Rendon

NO: Bigelow, Brough, Choi, Cooley, Megan Dahle, Flora, Gallagher, Irwin, Kiley, Lackey, Mathis, Obernolte, Patterson, Voepel

ABS, ABST OR NV: Arambula, Chen, Cunningham, Diep, Fong, Mayes, Muratsuchi, Quirk

SENATE FLOOR: 31-7-2

YES: Allen, Archuleta, Atkins, Beall, Bradford, Caballero, Chang, Dodd, Durazo, Galgiani, Glazer, Lena Gonzalez, Hertzberg, Hill, Hueso, Hurtado, Jackson, Leyva, McGuire, Mitchell, Monning, Nielsen, Pan, Portantino, Roth, Rubio, Skinner, Stern, Umberg, Wieckowski, Wiener

NO: Bates, Dahle, Grove, Melendez, Moorlach, Morrell, Wilk

ABS, ABST OR NV: Borgeas, Jones

UPDATED:

VERSION: August 25, 2020

CONSULTANT: Justin Delacruz / L. & E. / (916) 319-2091 FN: 0003588

 THIRD READING  

Bill No: AB 2537

Author: Rodriguez (D), et al.

Amended: 8/25/20 in Senate

Vote: 21

SENATE LABOR, PUB. EMP. & RET. COMMITTEE: 4-1, 8/11/20

AYES: Hill, Jackson, Mitchell, Pan

NOES: Morrell

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/20/20

AYES: Portantino, Bradford, Hill, Leyva, Wieckowski

NOES: Bates, Jones

ASSEMBLY FLOOR: 57-14, 6/8/20 - See last page for vote

SUBJECT: Personal protective equipment: health care employees

SOURCE: Author

DIGEST:

This bill requires that direct patient care employers maintain a stockpile of unexpired personal protective equipment (PPE) in the amount equal to six months of normal consumption.

Senate Floor Amendments of 8/25/20 adjust requirements of equipment stockpiling, clarify definitions, update findings and declarations and remove previous provisions that required a determination by the Department of Industrial Relations of whether PPE supply limitations exist.

ANALYSIS:

Existing law:

1. Establishes the California Occupational Safety and Health Act of 1973, to assure safe and healthful working conditions for all California workers. To this end, authorizes the enforcement of effective standards, the encouragement of employers to maintain safe and healthful working conditions and the furthering of research, training and education in the field of occupational safety and health. (Labor Code §6300)
2. Orders every employer to furnish a place of employment that is safe and healthful for the employees therein. (Labor Code §6400)
3. Orders every employer to furnish and use safety devices, as well as adopt practices and methods, which reasonably render employment and a place of employment safe and healthful. Further requires an employer to do everything reasonably necessary to protect the life, safety, and health of employees. (Labor Code §§6401, 6403)
4. Requires that an employer ensure that employees are instructed in the use of protective equipment in accordance with the manufacturer’s instructions and maintain required protective equipment in a safe, sanitary condition. (CCR Title 8 §3380)
5. Requires employers to assess their workplace to determine if hazards are present or are likely to be present that would necessitate the use of personal protective equipment (PPE). Further requires that an employer record which workplace was assessed, what person certified the assessment and the date of the assessment. (CCR Title 8 §3380)
6. Requires an employer who has determined that a workplace contains hazards to provide training for their employees including when PPE is necessary, what PPE is necessary, how to properly adjust and wear PPE, the limitations of PPE and the proper care, useful life and proper disposal method for the PPE. The employer will ensure that all employees are trained before an employee undertakes hazardous work and the employer will certify in writing that each employee has received and understood training in PPE. (CCR Title 8 §3380)
7. Requires each of the following types of employer to provide all safeguards required by this section, including provision of personal protective equipment, respirators, training, and medical services, at no cost to the employee, at a reasonable time and place for the employee, and during the employee's working hours:
8. Hospitals.
9. Skilled nursing facilities.
10. Clinics, medical offices, and other outpatient medical facilities.
11. Facilities where high hazard procedures are performed.
12. Home health care.
13. Long term health care facilities and hospices.
14. Medical outreach services.
15. Paramedic and emergency medical services including these services when provided by firefighters and other emergency responders.
16. Medical transport. (CCR Title 8 §5199)
17. Defines “Health Facility” to mean a facility, place, or building that is organized, maintained, and operated for the diagnosis, care, prevention, and treatment of human illness, physical or mental, including convalescence and rehabilitation and including care during and after pregnancy, or for any one or more of these purposes, for one or more persons, to which the persons are admitted for a 24-hour stay or longer. (Health and Safety Code §1250)
18. Defines “General Acute Health Facility” to mean “a health facility having a duly constituted governing body with overall administrative and professional responsibility and an organized medical staff that provides 24-hour inpatient care, including the following basic services: medical, nursing, surgical, anesthesia, laboratory, radiology, pharmacy, and dietary services. 

(Health and Safety Code §1250)

1. Allows the Division of Occupational Safety and Health (CalOSHA) to issue a citation to an employer who the division believes has violated any standard, rule, order, or regulation under its jurisdiction. Each citation must be in writing, must describe the nature of the violation, must include a reference to the provision of the code violated and must fix a reasonable time for the abatement of the alleged violation. (Labor Code §6317)

This bill:

1. Defines “Employer” to mean a person or organization that employs workers in the public or private sector to provide direct patient care in a general acute care hospital.
2. Defines “Personal Protective Equipment” to mean the equipment and devices necessary to comply with Sections 3380 and 5199 of Title 8 of the California Code of Regulations, referenced above.
3. Requires an employer supply personal protective equipment (PPE) to employees who provide direct patient care in a general acute care hospital. Further requires the employer ensure that the employee uses the PPE properly.
4. Requires that beginning on April 1, 2021 an employer as defined must maintain a stockpile of unexpired PPE in the amount equal to 3 months of normal consumption. The following equipment must be stockpiled:
5. N-95 filtering facepiece respirators.
6. Powered air-purifying respirators with high efficiency particulate air filters.
7. Elastomeric powered air-purifying respirators and appropriate particulate filters or cartridges.
8. Surgical masks.
9. Isolation gowns.
10. Eye protection.
11. Shoe coverings.
12. Requires that single-use equipment in the stockpile be new, not previously worn and unused.
13. Requires an employer provide either a copy of the employer’s written protective equipment procedure or an inventory of the employer’s stockpile to the Division of Occupational Safety and Health upon request.
14. Orders that an employer who violates the requirement to maintain a stockpile is subject to a civil penalty of up to $25,000 for each violation unless the Department of Industrial Relations determines that the violation occurred due to circumstances outside of the employer’s control.
15. Allows CalOSHA to issue a citation to enforce an alleged violation of this bill.
16. Requires that if an employer provides health care services in a facility that is controlled by another employer that would be required to maintain an equipment stockpile, the employer that controls the facility must maintain the stockpile.
17. Orders that on or before Jan 15, 2021, employers covered by this bill must be prepared to report their highest 7-day consecutive daily average consumption of PPE during 2019 to the Department of Industrial Relations, under penalty of perjury. General Acute Hospitals under the jurisdiction of the State Department of State Hospitals are exempt. State hospitals must make this information available to the Division of Occupational Safety and Health (CalOSHA) upon request.
18. Requires an employer to establish and implement written procedures for periodically determining the types and quantities of equipment used in normal consumption.
19. Makes findings and declarations about the severity of the COVID-19 crisis, the impact that this infectious disease has on front-line medical service providers and the need for direct-care employers to stockpile and maintain adequate amounts of PPE.

Comments

Need for this bill? According to the author:

Although over 40 million N95 respirators have been distributed in the State of California since March 2020, nurses and other health care workers have not seen the impact of this distribution in their units. In many cases, employers have locked up or rationed N95 respirators, leaving nurses and other health care workers unprotected. In some cases, nurses have been disciplined for bringing their own PPE or demanding that appropriate PPE be provided when treating COVID-19 positive patients.

The US Department of Labor and Department of Health and Human Services have encouraged employers to stockpile face masks and respirators in advance of a pandemic. It is clear now that manufacturing capacity at the time of an outbreak does not meet expected demand during a pandemic.

Staff Comments. It is difficult to overstate the state of unpreparedness exhibited by hospitals both in and outside of California in dealing with the 2020 outbreak of COVID-19. Nationwide, the Centers for Disease Control (CDC) reported over 60,000 infections and nearly 300 deaths in late May; during the early stages of the infection numerous reports surfaced detailing inability to obtain personal protective equipment for nurses. Harrowing images of nurses walking the corridors of hospitals in makeshift masks and garbage bags became commonplace.

AB 2537 attempts to ensure the safety of direct patient care employees in the event of another infectious disease outbreak. The bill mandates that public and private direct patient care employers keep and maintain a stockpile of unused personal protective equipment equal to 3 months of “normal consumption”. The intent is to avoid a situation similar to early 2020, where California was competing with other states and the federal government for the masks needed to protect its workers. If the masks and other equipment were already on hand, there would obviously be no need to bid against others.

Earlier versions of this bill were a bit vague on certain definitions and had a few questions about the feasibility of its requirements, given the still-raging COVID outbreak. The author and stakeholders have taken amendments that allow DIR to take into account whether an employer’s failure to maintain an equipment stockpile was due to circumstances outside their control, such as an order of equipment arriving defective. These changes will certain ease compliance, but members may wish to consider whether the definition of normal consumption could use a more explicit definition.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee:

• This bill would result in significant General Fund costs to university hospitals and the Department of State Hospitals (DSH), likely exceeding $15 million, to maintain a stockpile of qualified PPE equal to six months of normal consumption.
• With respect to the bill in print, the Department of Industrial Relations (DIR) indicated that its administrative costs resulting from the bill would be minor and absorbable. The amendments would impose additional duties on the department that could result in unabsorbable costs. The precise fiscal impact of the proposed amendments to DIR has yet to be determined.
• Unknown potential revenue could result from the bill’s civil penalty provision.

SUPPORT: (Verified 8/25/20)

Asian Pacific Environmental Network
California Labor Federation, AFL-CIO
California Nurses Association
California Pan - Ethnic Health Network
California School Employees Association
California Society of Health System Pharmacists
California Teamsters Public Affairs Council
Consumer Attorneys of California
Engineers and Scientists of California, IFPTE Local 20, AFL-CIO
United Food and Commercial Workers, Western States Council
Worksafe

OPPOSITION: (Verified 8/25/20)

California Children's Hospital Association
Valley Industry & Commerce Association

California Association of Public Hospitals & Health Systems
California Hospital Association/California Association of Hospitals and Health Systems

District Hospital Leadership Forum

Scripps Health

ARGUMENTS IN SUPPORT: The California Nurses Association writes in support:

Frontline nurses and health care workers treating patients with infectious diseases are likely exposed to the highest risk of infection because of their close, frequent contact with patients and working longer hours than usual. By the nature of their profession, health care workers in California are in daily danger of being directly exposed to all infectious diseases and novel pathogens, including COVID-19.

Title IIX regulations, particularly Sections 3380 and 5199, require health care employers to provide PPE to workers, with no costs to the workers, and ensure that the equipment is effectively used. Also, the US Department of Labor and Department of Health and Human Services have encouraged employers to stockpile face masks and respirators in advance of a pandemic.

AB 2537 amends the Labor Code and reinforces an employer’s responsibility to provide adequate PPE. It requires employers to maintain an adequate stockpile of PPE in case of a future emergency and requires employers to provide an inventory of their stockpiles to Cal-OSHA upon request.

ARGUMENTS IN OPPOSITION: The California Children’s Hospital Association writes in opposition:

California’s children’s hospitals share the author’s concern for the safety of their health care workers and patients. However, we are concerned that this bill creates an unreasonable and inefficient standard for hospitals, while ignoring the role of government in ensuring critical supply chains exist and function well during a pandemic or other health care emergency. It seeks to make hospitals solely responsible for ensuring the state’s health care system has adequate PPE for another pandemic. This narrow focus will unfairly burden hospitals, and potentially leave them subject to financial penalties if they fail to adequately foresee and stockpile for all possible future needs.

We are concerned that the amount of equipment required for “normal consumption” will be difficult, if not impossible, for children’s hospitals to determine. The amount of equipment needed in any given situation will depend on the types of patients cared for and how different patient populations are impacted by a particular condition, the rate of use of PPE, the need to plan for excess surge capacity, changing regulatory requirements and more. All of these are dynamic and can change week to week or month to month, and we worry our members could be unfairly penalized for failing to foresee and stockpile for every possible scenario they might face in the future.

ASSEMBLY FLOOR: 57-14, 6/8/20

AYES: Aguiar-Curry, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Burke, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooper, Daly, Eggman, Frazier, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Jones-Sawyer, Kalra, Kamlager, Levine, Limón, Low, Maienschein, McCarty, Medina, Mullin, Nazarian, O'Donnell, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Waldron, Weber, Wicks, Wood, Rendon

NOES: Bigelow, Brough, Choi, Cooley, Megan Dahle, Flora, Gallagher, Irwin, Kiley, Lackey, Mathis, Obernolte, Patterson, Voepel

NO VOTE RECORDED: Arambula, Chen, Cunningham, Diep, Fong, Mayes, Muratsuchi, Quirk

Prepared by: Jake Ferrera / L., P.E. & R. / (916) 651-1556

8/26/20 14:50:56

**** END ****

 THIRD READING  

Bill No: AB 2537

Author: Rodriguez (D), et al.

Amended: 8/20/20 in Senate

Vote: 21

SENATE LABOR, PUB. EMP. & RET. COMMITTEE: 4-1, 8/11/20

AYES: Hill, Jackson, Mitchell, Pan

NOES: Morrell

SENATE APPROPRIATIONS COMMITTEE: 5-2, 8/20/20

AYES: Portantino, Bradford, Hill, Leyva, Wieckowski

NOES: Bates, Jones

ASSEMBLY FLOOR: 57-14, 6/8/20 - See last page for vote

SUBJECT: Personal protective equipment: health care employees

SOURCE: Author

DIGEST:

This bill requires that direct patient care employers maintain a stockpile of unexpired PPE in the amount equal to six months of normal consumption.

ANALYSIS:

Existing law:

1. Establishes the California Occupational Safety and Health Act of 1973, to assure safe and healthful working conditions for all California workers. To this end, authorizes the enforcement of effective standards, the encouragement of employers to maintain safe and healthful working conditions and the furthering of research, training and education in the field of occupational safety and health. (Labor Code §6300)
2. Orders every employer to furnish a place of employment that is safe and healthful for the employees therein. (Labor Code §6400)
3. Orders every employer to furnish and use safety devices, as well as adopt practices and methods, which reasonably render employment and a place of employment safe and healthful. Further requires an employer to do everything reasonably necessary to protect the life, safety, and health of employees. (Labor Code §§6401, 6403)
4. Requires that an employer ensure that employees are instructed in the use of protective equipment in accordance with the manufacturer’s instructions and maintain required protective equipment in a safe, sanitary condition. (CCR Title 8 §3380)
5. Requires employers to assess their workplace to determine if hazards are present or are likely to be present that would necessitate the use of personal protective equipment (PPE). Further requires that an employer record which workplace was assessed, what person certified the assessment and the date of the assessment. (CCR Title 8 §3380)
6. Requires an employer who has determined that a workplace contains hazards to provide training for their employees including when PPE is necessary, what PPE is necessary, how to properly adjust and wear PPE, the limitations of PPE and the proper care, useful life and proper disposal method for the PPE. The employer will ensure that all employees are trained before an employee undertakes hazardous work and the employer will certify in writing that each employee has received and understood training in PPE. (CCR Title 8 §3380)
7. Requires each of the following types of employer to provide all safeguards required by this section, including provision of personal protective equipment, respirators, training, and medical services, at no cost to the employee, at a reasonable time and place for the employee, and during the employee's working hours:
8. Hospitals.
9. Skilled nursing facilities.
10. Clinics, medical offices, and other outpatient medical facilities.
11. Facilities where high hazard procedures are performed.
12. Home health care.
13. Long term health care facilities and hospices.
14. Medical outreach services.
15. Paramedic and emergency medical services including these services when provided by firefighters and other emergency responders.
16. Medical transport. (CCR Title 8 §5199)
17. Defines “Health Facility” to mean a facility, place, or building that is organized, maintained, and operated for the diagnosis, care, prevention, and treatment of human illness, physical or mental, including convalescence and rehabilitation and including care during and after pregnancy, or for any one or more of these purposes, for one or more persons, to which the persons are admitted for a 24-hour stay or longer. (Health and Safety Code §1250)
18. Defines “General Acute Health Facility” to mean “a health facility having a duly constituted governing body with overall administrative and professional responsibility and an organized medical staff that provides 24-hour inpatient care, including the following basic services: medical, nursing, surgical, anesthesia, laboratory, radiology, pharmacy, and dietary services. 

(Health and Safety Code §1250)

This bill:

1. Defines “Employer” to mean a person or organization that employs workers in the public or private sector to provide direct patient care in the hospital setting.
2. Defines “Personal Protective Equipment” to mean the equipment and devices necessary to comply with Sections 3380 and 5199 of Title 8 of the California Code of Regulations, referenced above.
3. Requires an employer supply personal protective equipment (PPE) to employees who provide direct patient care in a hospital setting. Further requires the employer ensure that the employee uses the PPE properly.
4. Requires that an employer maintain a stockpile of unexpired PPE in the amount equal to six months of normal consumption. Requires that the PPE in the stockpile be new and not previously worn or used. Normal Consumption will be based on the highest 7-day consecutive daily average consumption of PPE in 2019.
5. Requires an employer provide an inventory of its stockpile to the Division of Occupational Safety and Health upon request. Holds that an employer who violates the requirement to maintain a stockpile is subject to a civil penalty of up to $25,000 for each violation.
6. Requires that if an employer provides health care services in a facility that is controlled by another employer that would be required to maintain a PPE stockpile, the employer that controls the facility must maintain the stockpile.
7. Requires that on or before January 15, 2021, the Department of Industrial Relations (DIR) must consult with the Office of Emergency Services and make a determination whether there is a significant supply limitation of PPE facing purchasers in California. If it is determined that there is no supply limitation, starting 60 days after the determination is made employers must maintain a stockpile of PPE equal to 6 months normal consumption.
8. Requires that if DIR determines that there is a supply limitation, DIR will revisit the issue every 30 days until it is determined that the supply limitation no longer exists. After the supply limitation is determined to have abated, a direct employer will have 60 days to ensure that they have a stockpile of PPE equal to 6 months normal consumption.
9. Orders DIR to take into account whether employers have made requests through their medical health operational area coordinators to obtain PPE in determining whether a supply limitation exists.
10. Requires that if DIR determines that a supply limitation exists for one or more types of PPE, a direct care employer must still maintain stockpiles of PPE that have not been determined to have a supply limitation.
11. Requires that when DIR makes a determination of a significant supply limitation, DIR will make findings with applicable evidence that the limitation exists regarding a particular type of PPE. These findings must be in writing, posted on DIR’s website and submitted to the Legislature and relevant health care unions.
12. Orders that on or before Jan 15, 2021, employers covered by this bill must report their highest 7-day consecutive daily average consumption of PPE during 2019. General Acute Hospitals under the jurisdiction of the State Department of State Hospitals are exempt. State hospitals must make this information available to the Division of Occupational Safety and Health (CalOSHA) upon request.
13. Makes findings and declarations about the severity of the COVID-19 crisis, the impact that this infectious disease has on front-line medical service providers and the need for direct-care employers to stockpile and maintain adequate amounts of PPE.

Comments

Need for this bill? According to the author:

Although over 40 million N95 respirators have been distributed in the State of California since March 2020, nurses and other health care workers have not seen the impact of this distribution in their units. In many cases, employers have locked up or rationed N95 respirators, leaving nurses and other health care workers unprotected. In some cases, nurses have been disciplined for bringing their own PPE or demanding that appropriate PPE be provided when treating COVID-19 positive patients.

The US Department of Labor and Department of Health and Human Services have encouraged employers to stockpile face masks and respirators in advance of a pandemic. It is clear now that manufacturing capacity at the time of an outbreak does not meet expected demand during a pandemic.

Staff Comment. It is difficult to overstate the state of unpreparedness exhibited by hospitals both in and outside of California in dealing with the 2020 outbreak of COVID-19. Nationwide, the Centers for Disease Control (CDC) reported over 60,000 infections and nearly 300 deaths in late May; during the early stages of the infection numerous reports surfaced detailing inability to obtain personal protective equipment for nurses. Harrowing images of nurses walking the corridors of hospitals in makeshift masks and garbage bags became commonplace.

AB 2537 attempts to ensure the safety of direct patient care employees in the event of another infectious disease outbreak. This bill mandates that public and private direct patient care employers keep and maintain a stockpile of unused personal protective equipment equal to 6 months of “normal consumption”. The intent is to avoid a situation similar to early 2020, where California was competing with not only other states, but the federal government, for masks that the state needed to protect its workers. If the masks and other equipment is already on hand, there would obviously be no need to bid against others.

Earlier versions of this bill were a bit vague on certain definitions and had a few questions about the feasibility of its requirements, given the still-raging COVID outbreak. The author and stakeholders have since taken amendments that tighten up definitions of “normal consumption”, tying that to the highest 7-day rate of consumption from 2019. This will ease compliance for employers by providing clarity about how much PPE they will need to maintain. Finally, the author has amended the bill to allow DIR to make a determination about whether a “significant supply limitation” exists. This is a welcome compromise that avoids being overly punitive to employers still reeling from COVID-19, but still enforces standards that will ensure that direct patient care employees never face the unnecessary danger of trying to save lives without the proper protective equipment.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee:

• This bill would result in significant General Fund costs to university hospitals and the Department of State Hospitals (DSH), likely exceeding $15 million, to maintain a stockpile of qualified PPE equal to six months of normal consumption.
• With respect to the bill in print, the DIR indicated that its administrative costs resulting from the bill would be minor and absorbable. The amendments would impose additional duties on the department that could result in unabsorbable costs. The precise fiscal impact of the proposed amendments to DIR has yet to be determined.
• Unknown potential revenue could result from the bill’s civil penalty provision.

SUPPORT: (Verified 8/21/20)

Asian Pacific Environmental Network
California Nurses Association
California Pan - Ethnic Health Network
California School Employees Association
California Society of Health System Pharmacists
California Teamsters Public Affairs Council
Consumer Attorneys of California
Engineers and Scientists of California, IFPTE Local 20, AFL-CIO
United Food and Commercial Workers, Western States Council
Worksafe

OPPOSITION: (Verified 8/21/20)

California Association of Public Hospitals & Health Systems

California Children's Hospital Association

California Hospital Association/California Association of Hospitals and Health Systems

District Hospital Leadership Forum

Valley Industry & Commerce Association

ARGUMENTS IN SUPPORT: The California Nurses Association writes in support:

Frontline nurses and health care workers treating patients with infectious diseases are likely exposed to the highest risk of infection because of their close, frequent contact with patients and working longer hours than usual. By the nature of their profession, health care workers in California are in daily danger of being directly exposed to all infectious diseases and novel pathogens, including COVID-19.

Title IIX regulations, particularly Sections 3380 and 5199, require health care employers to provide PPE to workers, with no costs to the workers, and ensure that the equipment is effectively used. Also, the US Department of Labor and Department of Health and Human Services have encouraged employers to stockpile face masks and respirators in advance of a pandemic.

AB 2537 amends the Labor Code and reinforces an employer’s responsibility to provide adequate PPE. It requires employers to maintain an adequate stockpile of PPE in case of a future emergency and requires employers to provide an inventory of their stockpiles to Cal-OSHA upon request.

ARGUMENTS IN OPPOSITION: The California Children’s Hospital Association writes in opposition:

California’s children’s hospitals share the author’s concern for the safety of their health care workers and patients. However, we are concerned that this bill creates an unreasonable and inefficient standard for hospitals, while ignoring the role of government in ensuring critical supply chains exist and function well during a pandemic or other health care emergency. It seeks to make hospitals solely responsible for ensuring the state’s health care system has adequate PPE for another pandemic. This narrow focus will unfairly burden hospitals, and potentially leave them subject to financial penalties if they fail to adequately foresee and stockpile for all possible future needs.

We are concerned that the amount of equipment required for “normal consumption” will be difficult, if not impossible, for children’s hospitals to determine. The amount of equipment needed in any given situation will depend on the types of patients cared for and how different patient populations are impacted by a particular condition, the rate of use of PPE, the need to plan for excess surge capacity, changing regulatory requirements and more. All of these are dynamic and can change week to week or month to month, and we worry our members could be unfairly penalized for failing to foresee and stockpile for every possible scenario they might face in the future.

ASSEMBLY FLOOR: 57-14, 6/8/20

AYES: Aguiar-Curry, Bauer-Kahan, Berman, Bloom, Boerner Horvath, Bonta, Burke, Calderon, Carrillo, Cervantes, Chau, Chiu, Chu, Cooper, Daly, Eggman, Frazier, Friedman, Gabriel, Cristina Garcia, Eduardo Garcia, Gipson, Gloria, Gonzalez, Gray, Grayson, Holden, Jones-Sawyer, Kalra, Kamlager, Levine, Limón, Low, Maienschein, McCarty, Medina, Mullin, Nazarian, O'Donnell, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Salas, Santiago, Smith, Mark Stone, Ting, Waldron, Weber, Wicks, Wood, Rendon

NOES: Bigelow, Brough, Choi, Cooley, Megan Dahle, Flora, Gallagher, Irwin, Kiley, Lackey, Mathis, Obernolte, Patterson, Voepel

NO VOTE RECORDED: Arambula, Chen, Cunningham, Diep, Fong, Mayes, Muratsuchi, Quirk

Prepared by: Jake Ferrera / L., P.E. & R. / (916) 651-1556

8/25/20 10:08:51

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 2537 (Rodriguez) - Personal protective equipment: health care employees

Bill Summary:

AB 2537 would require that direct patient care employers maintain a stockpile of unexpired personal protective equipment (PPE) in the amount equal to six months of normal consumption.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on August 20, 2020

Fiscal Impact:

• This bill would result in significant General Fund costs to university hospitals and the Department of State Hospitals (DSH), likely exceeding $15 million, to maintain a stockpile of qualified PPE equal to six months of normal consumption.
• With respect to the bill in print, the Department of Industrial Relations (DIR) indicated that its administrative costs resulting from the bill would be minor and absorbable. The amendments would impose additional duties on the department that could result in unabsorbable costs. The precise fiscal impact of the proposed amendments to DIR has yet to be determined.
• Unknown potential revenue could result from the bill’s civil penalty provision.

Author Amendments:

• Before hospitals begin stockpiling PPE in 2021, require DIR to consult to make a determination as to whether there is a significant supply chain limitation of PPE facing CA purchasers, and take specified action.
• On or by January 15, 2021, require specified entities to report DIR their highest 7-day consecutive daily average consumption of PPE during the 2019 calendar year, as specified.
• If an employer provides health care services in a facility or other setting controlled by another employer who is obligated to maintain a PPE stockpile, as specified, the employer who controls the facility or other setting would be required to maintain the required PPE for the employer providing health care services in that facility or setting.

-- END --

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2019 - 2020 Regular Session

AB 2537 (Rodriguez) - Personal protective equipment: health care employees

Bill Summary:

AB 2537 would require that direct patient care employers maintain a stockpile of unexpired personal protective equipment (PPE) in the amount equal to six months of normal consumption.

Fiscal Impact:

• This bill would result in significant General Fund costs to university hospitals and the Department of State Hospitals (DSH), likely exceeding $15 million, to maintain a stockpile of qualified PPE.
• The Department of Industrial Relations (DIR) indicates that it would its administrative costs resulting from the bill would be minor an absorbable.
• Unknown potential revenue could result from the bill’s civil penalty provision.

Background:

PPE is specialized clothing or equipment worn by health care workers to help prevent the spread of germs between patients. The term is broad, but it often includes gloves, goggles or masks, and respirators. The California Department of Public Health indicates that PPE is crucial for health workers because they perform direct patient care and “routinely have prolonged, close direct contact with patients.”

During the COVID-19 pandemic, media reports have highlighted the difficulty for hospitals to acquire adequate supplies. Prior to the pandemic, the amount of PPE a hospital would need to purchase in a given year would be a function of the types of patients seen and the types of care provided.

Proposed Law: The bill would, among other things, do the following:

• Define “Employer” to mean a person or organization that employs workers in the public or private sector to provide direct patient care in the hospital setting.
• Require an employer supply PPE, as defined, to employees who provide direct patient care in a hospital setting. Further requires the employer ensure that the employee uses the PPE properly.
• Require that an employer maintain a stockpile of unexpired PPE in the amount equal to six months of normal consumption. Requires that the PPE in the stockpile be new and not previously worn or used.
• Require an employer provide an inventory of its stockpile to DIR’s Division of Occupational Safety and Health upon request. An employer who violates the requirement to maintain a stockpile would be subject to a civil penalty of up to $25,000 for each violation.

Related Legislation: SB 275 (Pan) would require the Department of Public Health (CDPH) to establish a PPE stockpile to ensure adequate supply of PPE for all health care workers and essential workers in the State that is sufficient for a 90-day pandemic or other health emergency. The bill is currently pending in the Assembly Appropriations Committee.

Staff Comments:

This bill seeks to ensure the safety of direct patient care employees in the event of another infectious disease outbreak. Specifically, it requires public and private direct patient care employers to maintain a stockpile of unused PPE equal to six months of “normal consumption”. The intent is to avoid a situation similar to early 2020, where California was competing with other states and the federal government, for PPE needed to protect its workers.

The estimated costs to DSH reflect both PPE and storage costs. On a per-bed basis, DSH costs would likely be lower than other hospitals on a per-bed basis. DSH does not provide direct care to short-term patients; consequently, its consumption rate is likely to be lower.

-- END --

SENATE COMMITTEE ON LABOR, PUBLIC EMPLOYMENT AND RETIREMENT

Senator Jerry Hill, Chair

2019 - 2020 Regular

Bill No: AB 2537 Hearing Date: August 11, 2020

SUBJECT: Personal protective equipment: health care employees.

Due to the COVID-19 Pandemic and the unprecedented nature of the 2020 Legislative Session, all Senate Policy Committees are working under a compressed timeline. This timeline does not allow this bill to be referred and heard by more than one committee as a typical timeline would allow. In order to fully vet the contents of this measure for the benefit of Senators and the public, this analysis includes information from the Senate Judiciary Committee.

KEY ISSUE

Should the Legislature require that direct patient care employers maintain a stockpile of unexpired PPE in the amount equal to six months of normal consumption?

ANALYSIS

Existing law:

1. Establishes the California Occupational Safety and Health Act of 1973, to assure safe and healthful working conditions for all California workers. To this end, authorizes the enforcement of effective standards, the encouragement of employers to maintain safe and healthful working conditions and the furthering of research, training and education in the field of occupational safety and health. (Labor Code §6300)
2. Orders every employer to furnish a place of employment that is safe and healthful for the employees therein. (Labor Code §6400)
3. Orders every employer to furnish and use safety devices, as well as adopt practices and methods, which reasonably render employment and a place of employment safe and healthful. Further requires an employer to do everything reasonably necessary to protect the life, safety, and health of employees. (Labor Code §§6401, 6403)
4. Requires that an employer ensure that employees are instructed in the use of protective equipment in accordance with the manufacturer’s instructions and maintain required protective equipment in a safe, sanitary condition. (California Code of Regulations Title 8 §3380)
5. Requires employers to assess their workplace to determine if hazards are present or are likely to be present that would necessitate the use of personal protective equipment (PPE). Further requires that an employer record which workplace was assessed, what person certified the assessment and the date of the assessment. (California Code of Regulations Title 8 §3380)
6. Requires an employer who has determined that a workplace contains hazards to provide training for their employees including when PPE is necessary, what PPE is necessary, how to properly adjust and wear PPE, the limitations of PPE and the proper care, useful life and proper disposal method for the PPE. The employer will ensure that all employees are trained before an employee undertakes hazardous work and the employer will certify in writing that each employee has received and understood training in PPE. (California Code of Regulations Title 8 §3380)
7. Requires each of the following types of employer to provide all safeguards, including provision of personal protective equipment, respirators, training, and medical services, at no cost to the employee, at a reasonable time and place for the employee, and during the employee's working hours:
8. Hospitals.
9. Skilled nursing facilities.
10. Clinics, medical offices, and other outpatient medical facilities.
11. Facilities where high hazard procedures are performed.
12. Home health care.
13. Long term health care facilities and hospices.
14. Medical outreach services.
15. Paramedic and emergency medical services including these services when provided by firefighters and other emergency responders.
16. Medical transport.

(California Code of Regulations Title 8 §5199)

This bill:

1. Defines “Employer” to mean a person or organization that employs workers in the public or private sector to provide direct patient care in the hospital setting.
2. Defines “Personal Protective Equipment” to mean the equipment and devices necessary to comply with Sections 3380 and 5199 of Title 8 of the California Code of Regulations, referenced above.
3. Requires an employer supply personal protective equipment (PPE) to employees who provide direct patient care in a hospital setting. Further requires the employer ensure that the employee uses the PPE properly.
4. Requires that an employer maintain a stockpile of unexpired PPE in the amount equal to six months of normal consumption. Requires that the PPE in the stockpile be new and not previously worn or used.
5. Requires an employer provide an inventory of its stockpile to the Division of Occupational Safety and Health upon request. Holds that an employer who violates the requirement to maintain a stockpile is subject to a civil penalty of up to $25,000 for each violation.
6. Makes findings and declarations about the severity of the COVID-19 crisis, the impact that this infectious disease has on front-line medical service providers and the need for direct-care employers to stockpile and maintain adequate amounts of PPE.

COMMENTS

1. Need for this bill?

According to the Author:

“Although over 40 million N95 respirators have been distributed in the State of California since March 2020, nurses and other health care workers have not seen the impact of this distribution in their units. In many cases, employers have locked up or rationed N95 respirators, leaving nurses and other health care workers unprotected. In some cases, nurses have been disciplined for bringing their own PPE or demanding that appropriate PPE be provided when treating COVID-19 positive patients.

The US Department of Labor and Department of Health and Human Services have encouraged employers to stockpile face masks and respirators in advance of a pandemic. It is clear now that manufacturing capacity at the time of an outbreak does not meet expected demand during a pandemic.”

1. Staff Comment

It is difficult to overstate the level of unpreparedness exhibited by hospitals both in and outside of California in dealing with the 2020 outbreak of COVID-19. Nationwide, the Centers for Disease Control (CDC) reported over 60,000 infections and nearly 300 deaths in late May in the healthcare industry; during the early stages of the outbreak numerous reports surfaced detailing inability to obtain personal protective equipment for nurses. Harrowing images of nurses walking the corridors of hospitals in makeshift masks and garbage bags became commonplace.

AB 2537 attempts to ensure the safety of direct patient care employees in the event of another infectious disease outbreak. The bill mandates that public and private direct patient care employers keep and maintain a stockpile of unused personal protective equipment equal to 6 months of “normal consumption”. The intent is to avoid a situation similar to early 2020, where California was competing with other states and the federal government, for masks that the state needed to protect its workers. If the masks and other equipment were already on hand, there would obviously be no need to bid against others.

Some stakeholders have pointed out what they feel are potential unintended consequences of AB 2537 that the author might consider. The first is that the bill requires that 6 months’ “normal consumption” of PPE be stockpiled. The referenced California Code of Regulations sections pertain to multiple types of potential hazards and disease outbreaks. Different diseases require different means of protection and different means of protection have different rates of “normal consumption”. The bill should further clarify which diseases and equipment it requires a 6 month stockpile of, both to make clear which equipment employees must be trained with and to give employers a smoother path to compliance.

Finally, the author could consider clarifying the timeframe where an employer comes out of compliance with the bill. Currently, virtually all hospitals are out of compliance with the provisions of AB 2537. The legislative calendar would allow for approximately 3 months between the signing of the bill and its provisions taking effect on January 1^st, 2020. Global supply chains are still reeling from the effects of COVID-19 and it is altogether conceivable that an insignificant number of employers will be unable to obtain the PPE required under this bill. It would take some diversion of the state’s labor enforcement to verify these violations; furthermore, sending OSHA inspectors into facilities that are experiencing a viral outbreak puts more Californians at risk of infection. The author could consider delaying enforcement of penalties under AB 2537 or consider specific language that allows some facilities affected by COVID-19 to offset their penalties by agreeing to moves to bring them into compliance.

1. Double Referral: Senate Judiciary Committee

The Senate Judiciary Committee notes:

“This bill touches upon various issues within the jurisdiction of the Senate Judiciary Committee, including due process and civil penalties. The Senate Judiciary Committee has tended to favor the adoption bills that ensure due process is given to those who are assessed liability by the state and where it is clear what conduct is being prohibited. One consideration of due process is ensuring that the provisions of a statute can actually be complied with. The Legislature may wish to consider whether the provisions of this bill can be complied with taking into consideration the documented ongoing shortage of availability of personal protective equipment during the COVID-19 pandemic.”

1. Proponent Arguments

The California Nurses Association writes in support:

“Frontline nurses and health care workers treating patients with infectious diseases are likely exposed to the highest risk of infection because of their close, frequent contact with patients and working longer hours than usual. By the nature of their profession, health care workers in California are in daily danger of being directly exposed to all infectious diseases and novel pathogens, including COVID-19.

Title IIX regulations, particularly Sections 3380 and 5199, require health care employers to provide PPE to workers, with no costs to the workers, and ensure that the equipment is effectively used. Also, the US Department of Labor and Department of Health and Human Services have encouraged employers to stockpile face masks and respirators in advance of a pandemic.

AB 2537 amends the Labor Code and reinforces an employer’s responsibility to provide adequate PPE. It requires employers to maintain an adequate stockpile of PPE in case of a future emergency and requires employers to provide an inventory of their stockpiles to Cal-OSHA upon request.”

1. Opponent Arguments:

The California Children’s Hospital Association writes in opposition:

“California’s children’s hospitals share the author’s concern for the safety of their health care workers and patients. However, we are concerned that this bill creates an unreasonable and inefficient standard for hospitals, while ignoring the role of government in ensuring critical supply chains exist and function well during a pandemic or other health care emergency. It seeks to make hospitals solely responsible for ensuring the state’s health care system has adequate PPE for another pandemic. This narrow focus will unfairly burden hospitals, and potentially leave them subject to financial penalties if they fail to adequately foresee and stockpile for all possible future needs.

We are concerned that the amount of equipment required for “normal consumption” will be difficult, if not impossible, for children’s hospitals to determine. The amount of equipment needed in any given situation will depend on the types of patients cared for and how different patient populations are impacted by a particular condition, the rate of use of PPE, the need to plan for excess surge capacity, changing regulatory requirements and more. All of these are dynamic and can change week to week or month to month, and we worry our members could be unfairly penalized for failing to foresee and stockpile for every possible scenario they might face in the future.”

1. Prior Legislation:

None.

SUPPORT

California Nurses Association (Sponsor)

Asian Pacific Environmental Network

California Pan - Ethnic Health Network

California School Employees Association

California Society of Health System Pharmacists

California Teamsters Public Affairs Council

Consumer Attorneys of California

Engineers and Scientists of California, Ifpte Local 20, AFL-CIO

United Food and Commercial Workers, Western States Council

Worksafe

OPPOSITION

California Association of Public Hospitals & Health Systems

California Children's Hospital Association

California Hospital Association/California Association of Hospitals and Health Systems

District Hospital Leadership Forum

-- END --

(Without Reference to File)

ASSEMBLY THIRD READING

ATR Bill Id:AB 2537

Author:(Rodriguez)

As Amended Ver:June 4, 2020

Majority vote

SUMMARY:

Requires hospital employers to furnish and ensure that employees use the personal protective equipment (PPE) supplied to them.

Major Provisions

1. Defines "employer" as a person or organization who employs workers in the public or private sector to provide direct patient care in the hospital setting.
2. Defines "personal protective equipment" as the equipment and devices necessary to comply with Title 8 of the California Code of Regulations Section 3380 and 5199.
3. Requires employers to furnish and ensure that employees use the PPE supplied to them.
4. Requires employers to maintain a stockpile of unexpired personal protective equipment in the amount equal to six months of normal consumption.
5. Requires an employer to provide, upon request, an inventory of its stockpile to the Division of Occupational Safety and Health.
6. Provides that a civil penalty of up to $25,000 dollars shall be imposed upon an employer who fails to maintain a stockpile equal to six months of normal consumption.

COMMENTS:

The nationwide supply shortage of personal protective equipment during this global pandemic is well-documented. Due to this shortage, frontline healthcare workers have reported being required to preserve PPE by re-using PPE. According the California Department of Public Health, as of June 2, 2020, local health departments have reported 10,293 confirmed positive cases of COVID-19 in health care workers and 63 deaths statewide. This bill seeks to protect healthcare workers from further spread of COVID-19 as well as ensure adequate supply of PPE to prepare for the future.

Regulations Referenced in this Bill

Section 3380 of Title 8 of the California Code of Regulations, entitled "Personal Protective Devices," outlines the quality standards, training requirements, and other duties placed on an employer with respect to PPE. Section 3380 specifically requires an employer to:

1. Assure that employees are instructed and use PPE in accordance with the manufacturer's instructions.
2. Assure that any PPE used is maintained in a safe, sanitary condition.
3. Provide PPE that fits and is reasonably comfortable so that it does not hinder an employee's movements necessary to perform the work.
4. Assess the workplace to determine if hazards are present or will likely be present which will require the use of PPE and if such hazards exist, select PPE to address the hazard.
5. Provide training to each employee who is required to use PPE which must include knowing when PPE is necessary, what PPE is necessary, how to properly use the PPE, the limitations of the PPE, and proper maintenance and disposal of the PPE.

Section 5199 of Title 8 of the California Code of Regulations, entitled "Aerosol Transmissible Diseases," addresses safety standards for work activity or working conditions that present an elevated risk of exposure to a disease or pathogen that can be transmitted through the air. This regulation also details the requirements for using respirators, including providing training to employees who must use respirators.

According to the Author:

"We are currently experiencing something we haven't before and healthcare workers are at the frontlines of it all. While dealing with this pandemic the last thing our workers should be worried about is whether or not, they will be protected from exposure. We must protect those providing care so that they too can continue to do their work."

Arguments in Support:

California Nurses Association/National Nurses United, sponsor of the bill, argues "Title [8 of the California Code of Regulations], particularly Sections 3380 and 5199, require health care employers to provide PPE to workers, with no costs to workers, and ensure that the equipment is effectively used. Also, the US Department of Labor and Department of Health and Human Services have encouraged employers to stockpile face masks and respirators in advance of a pandemic. It is clear now that manufacturing capacity at the time of an outbreak does not meet expected demand during a pandemic."

Arguments in Opposition:

The California Children's Hospital Association argues "the amount of equipment required for 'normal consumption' will be difficult, if not impossible, for children's hospitals to determine. The amount of equipment needed in any given situation will depend on the types of patients cared for and how different patient populations are impacted by a particular condition, the rate of use of PPE, the need to plan for excess surge capacity, changing regulatory requirements and more. All of these are dynamic and can change week to week or month to month, and we worry our members could be unfairly penalized for failing to foresee and stockpile for every possible scenario they might face in the future."

FISCAL COMMENTS:

According to the Assembly Appropriations Committee,

1. Significant state costs – around $5 million General Fund annually – for the Department of State Hospitals (DSH) to maintain a stockpile of qualified PPE. This cost estimate assumes a little less than $1 million per state hospital for maintaining an ongoing six-month supply of PPE. On a per-bed basis, this cost is lower than many other hospitals because DSH does not provide direct care to short-term patients, and therefore its PPE consumption rate is likely to be lower.
2. Minor and absorbable costs for Cal/OSHA to enforce the provisions of this bill.

VOTES:

ASM LABOR AND EMPLOYMENT: 5-1-1

YES: Kalra, Carrillo, Gonzalez, Jones-Sawyer, Luz Rivas

NO: Flora

ABS, ABST OR NV: Diep

ASM APPROPRIATIONS: 13-3-2

YES: Gonzalez, Bauer-Kahan, Bloom, Bonta, Calderon, Carrillo, Chau, Eggman, Gabriel, Eduardo Garcia, Petrie-Norris, McCarty, Robert Rivas

NO: Bigelow, Megan Dahle, Voepel

ABS, ABST OR NV: Diep, Fong

UPDATED:

VERSION: June 4, 2020

CONSULTANT: Justin Delacruz / L. & E. / (916) 319-2091 FN: 0002908

Date of Hearing: June 2, 2020

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 2537

Author:(Rodriguez) – As Amended Ver:May 12, 2020

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill requires an employer with employees who provide direct patient care in a hospital setting to maintain a stockpile of one year’s worth of unexpired personal protective equipment (PPE). Each employer must provide the Division of Occupational Safety and Health (Cal/OSHA) an inventory of the stockpile upon request, and this bill imposes a $25,000 penalty per violation.

FISCAL EFFECT:

1. Significant state costs – likely in excess of $15 million General Fund annually – for the Department of State Hospitals (DSH) to maintain a stockpile of qualified PPE. This cost estimates assume an average cost of at least $2.5 million per state hospital, which includes PPE and storage costs. On a per-bed basis, this cost is lower than many other hospitals because DSH does not provide direct care to short-term patients, and therefore its PPE consumption rate is likely to be lower. This cost estimate also assume PPE prices return to levels seen before the novel coronavirus (COVID-19).
2. Minor costs for Cal/OSHA to enforce the provisions of this bill.

COMMENTS:

1. Background. PPE is specialized clothing or equipment worn by health care workers to help prevent the spread of germs between patients. PPE is a broad term, but it often includes gloves, goggles or masks, and respirators. According to the California Department of Public Health, PPE is crucial for health workers because they perform direct patient care and “routinely have prolonged, close direct contact with patients.”

The COVID-19 pandemic has disrupted the market for PPE. Prior to the COVID-19 pandemic, hospitals accounted for approximately 55% of the PPE market. During the pandemic, media reports have highlighted the difficulty for hospitals to acquire adequate supplies.

Prior to the COVID-19 pandemic, the amount of PPE a hospital would need to purchase in a given year would be a function of the types of patients seen and the types of care provided. While there is not usually an easy formula, hospitals will often look at past year’s PPE use to determine their next purchase.

1. Purpose. According to the author, this bill well help ensure adequate availability of PPE for health workers, which is vital because “the last thing our workers should be worried about is whether or not they will be protected from exposure.” The California Nurses Association (CNA), the bill’s sponsor, notes that the U.S. Department of Labor and the U.S. Department of Health and Human Services “have encouraged employers to stockpile face masks and respirators in advance of a pandemic.”
2. Costs and concerns. This bill aims to require hospital employers to stockpile at least a year’s supply of PPE for their employees. This will require hospitals to purchase an amount of PPE beyond what has been normal practice. The author may wish to consider the following issues to help clarify the bill’s scope and to help reduce costs:
3. This’s bill operative date will mean excessive costs for hospitals. This bill’s provisions will go into effect on January 1, 2021. It is unlikely the current PPE supply crisis will be resolved by then. This bill will require employers to purchase a year’s supply of PPE at a time when PPE costs much more than its normal market price.

This committee does not know if the author intends for this bill to be a long-term solution that prevents future PPE supply disruptions. If that is the case, the author may want to amend this bill to make its operative date some period of time after the current emergency is over. This would mean lower PPE prices and a smoother procurement process.

1. A year’s supply of stockpile will create logistical challenges. This bill requires a hospital to maintain a year’s supply of PPE, assuming normal consumption. It is unclear why a year’s worth of PPE is necessary and maintaining that much PPE will result in significant inefficiencies and costs. Some hospitals may not have the physical storage space for that much equipment and will need to find storage space. As the PPE expires, hospitals will need to replace.
2. Bill lacks definitions, hard to know true impact. This bill requires a stockpile of PPE assuming “normal consumption.” This bill does not define this term, and normal may be different for different types of hospitals and different types of care. One possible measure would be an average of past PPE purchases needed to provide employees adequate PPE in the years prior to the COVID-19.

Analysis Prepared by: Luke Reidenbach / APPR. / (916) 319-2081

Date of Hearing: May 20, 2020

ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT

Ash Kalra, Chair

ABPCA Bill Id:AB 2537 (

Author:Rodriguez) – As Amended Ver:May 12, 2020

SUBJECT: Personal protective equipment: health care employees

SUMMARY: Requires hospital employers to furnish and ensure that employees use the personal protective equipment (PPE) supplied to them. Specifically, this bill:

1. Defines “employer” as a person or organization who employs workers in the public or private sector to provide direct patient care in the hospital setting.
2. Defines “personal protective equipment” as the equipment and devices necessary to comply with Title 8 of the California Code of Regulations Section 3380 and 5199.
3. Requires employers to furnish and ensure that employees use the PPE supplied to them.
4. Requires employers to maintain a stockpile of unexpired personal protective equipment in the amount equal to one year of normal consumption.
5. Requires an employer to provide, upon request, an inventory of its stockpile to the Division of Occupational Safety and Health.
6. Provides that a civil penalty of up to $25,000 dollars shall be imposed upon an employer who fails to maintain a stockpile equal to one year of normal consumption.

EXISTING LAW:

1. Requires an employer to furnish employment and a place of employment that is safe and healthful for its employees.
2. Requires an employer to furnish and use safety devices and safeguards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render employment and the place of employment safe and healthful.
3. Requires an employer to do everything reasonably necessary to protect the life, safety, and health of employees.

FISCAL EFFECT: Unknown

COMMENTS: The nationwide supply shortage of personal protective equipment during this global pandemic is well-documented. Due to this shortage, frontline healthcare workers have reported being required to preserve PPE by re-using PPE. According the California Department of Public Health, as of May 14, 2020, local health departments have reported 7,977 confirmed positive cases of COVID-19 in health care workers and 44 deaths statewide. This bill seeks to protect healthcare workers from further spread of COVID-19 as well as ensure adequate supply of PPE to prepare for the future.

According to the author, “[w]e are currently experiencing something we haven’t before and healthcare workers are at the frontlines of it all. While dealing with this pandemic the last thing our workers should be worried about is whether or not, they will be protected from exposure. We must protect those providing care so that they too can continue to do their work.”

Regulations Referenced in this Bill

Section 3380 of Title 8 of the California Code of Regulations, entitled “Personal Protective Devices,” outlines the quality standards, training requirements, and other duties placed on an employer with respect to PPE. Section 3380 specifically requires an employer to:

1. Assure that employees are instructed and use PPE in accordance with the manufacturer’s instructions.
2. Assure that any PPE used is maintained in a safe, sanitary condition.
3. Provide PPE that fits and is reasonably comfortable so that it does not hinder an employee’s movements necessary to perform the work.
4. Assess the workplace to determine if hazards are present or will likely be present which will require the use of PPE and if such hazards exist, select PPE to address the hazard.
5. Provide training to each employee who is required to use PPE which must include knowing when PPE is necessary, what PPE is necessary, how to properly use the PPE, the limitations of the PPE, and proper maintenance and disposal of the PPE.

Section 5199 of Title 8 of the California Code of Regulations, entitled “Aerosol Transmissible Diseases,” addresses safety standards for work activity or working conditions that present an elevated risk of exposure to a disease or pathogen that can be transmitted through the air. This regulation also details the requirements for using respirators, including providing training to employees who must use respirators.

California Nurses Association/National Nurses United, sponsor of the bill, argues “Title [8 of the California Code of Regulations], particularly Section 3380 and 5199, require health care employers to provide PPE to workers, with no costs to workers, and ensure that the equipment is effectively used. Also, the US Department of Labor and Department of Health and Human Services have encouraged employers to stockpile face masks and respirators in advance of a pandemic. It is clear now that manufacturing capacity at the time of an outbreak does not meet expected demand during a pandemic.”

REGISTERED SUPPORT / OPPOSITION:

Support

California Labor Federation
California Nurses Association

Opposition

None on file.

Analysis Prepared by: Justin Delacruz / L. & E. /