Governor Newsom Vetoes Bill Mandating Occupational Safety and Health Measures for Household Domestic Service Employees

On September 30, 2023, California Governor Gavin Newsom vetoed Senate Bill (SB) No. 686, legislation that would have extended California’s existing occupational safety and health laws and regulations to the domestic service industry. SB 686 would have required the California Division of Occupational Safety and Health (Cal/OSHA) to adopt industry guidance for the domestic service industry by January 1, 2025.

Quick Hits

• On September 30, 2023, Governor Newsom vetoed SB 686, a measure that would have extended occupational safety and health protections to California’s domestic service industry, which traditionally remained outside Cal/OSHA’s regulatory jurisdiction.
• Governor Newsom’s veto message noted that California’s existing occupational safety and health requirements and penalty scheme were “meant for businesses and not private individuals.”

Background

In 2020, the California State Legislature passed legislation that sought to extend occupational safety and health protections to domestic workers. Governor Newsom vetoed that bill in September 2020, citing, among other reasons, the fact that regulations could not treat homes the same as traditional workplaces.

On February 16, 2023, Senator María Elena Durazo (D-26) introduced SB 686, which Assembly Member Wendy Carrillo (D-52) coauthored. The Senate passed the bill on May 26, 2023. On September 13, 2023, the Assembly passed the bill with amendments. A day later, the Senate concurred with the amendments and ordered the bill engrossed and enrolled.

State law imposes certain requirements on employers to ensure the healthy and safe working conditions of employees but excludes household domestic service from the definition of “employment.” Legislation that Governor Newsom signed into law in September 2021 created an advisory committee to provide recommendations regarding the health and safety of domestic workers in home settings. In January 2023, the advisory committee recommended that the legislature “remove the household domestic services exclusion from the definition of employment” in the California Labor Code. SB 686, the fruit of the committee’s recommendation, attempted to substantially expand Cal/OSHA’s jurisdiction to cover the domestic service industry.

Proposed Changes

SB 686 affirmed that “[b]ecause domestic workers care for the most important elements of their employers’ lives, families, and homes, it is in the interest of employees, employers, and the people of the State of California to ensure that the health and safety of domestic workers are protected.”

The legislation would have amended Labor Code Section 1455 to:

• require the Division of Labor Standards Enforcement (DLSE) to establish and maintain an outreach and education program to promote awareness of and increase compliance with the labor protection standards that affect domestic work and other low-wage industries;
• direct the DLSE to issue competitive requests to community-based organizations (CBOs) to provide education and outreach services primarily focused on, but not limited to, domestic work employees and employers; and
• entrust CBOs to develop and consult with Cal/OSHA “regarding the core education and outreach materials regarding health and safety standards, retaliation, and the division’s workplace safety complaint and retaliation process, including specific issues that affect the domestic work industry differently.”

In addition, SB 686 would have amended Labor Code Section 6303 to define “employment” as “the carrying on of any trade, enterprise, project, industry, business, occupation, or work, including all excavation, demolition, and construction work, or any process or operation in any way related thereto, in which any person is engaged or permitted to work for hire, except household domestic service.”

Labor Code Section 6303 would have also excluded from employment “[h]ousehold domestic service that is publicly funded, including publicly funded household domestic service provided to a recipient, client, or beneficiary with a share of cost in that service,” unless subject to other specified sections of the California Code of Regulations, and “[f]amily daycare homes.”

Finally, the bill would have added Section 6714 to the Labor Code to:

• obligate Cal/OSHA to “adopt industry guidance to assist household domestic service employers on their legal obligations under existing occupational safety and health laws and regulations that apply to the work activity of household domestic service employees” by January 1, 2025, which would have been “consistent with the voluntary industry guidelines established by the Household Domestic Services Employment Safety Committee”; and
• set January 1, 2026, as the deadline for Cal/OSHA to propose additional domestic industry-specific regulations to the California Occupational Safety and Health Standards Board to review and for the Standards Board to adopt such regulations.

Veto Message

Governor Newsom’s veto message identified the onerous burdens that SB 686’s provisions would have imposed on individuals, “from the requirement to establish an effective [I]njury and [I]llness Prevention Program to providing an eyewash station if household workers use[d] chemicals like bleach, to implementing a Hazard Communication Program.” The message also pointed out that “the current penalty scheme was meant for businesses and not private individuals,” especially when penalties can reach up to $15,000 per violation.

In addition, Governor Newsom noted that SB 686 had not “identif[ied] which specific standards domestic employers would be required to follow” or “outline[d] an industry-specific system for investigation or enforcement as discussed and recommended by the Advisory Committee.” The message concluded by voicing concern about the “severe cost burdens and penalties for many people who cannot afford them” because “approximately 44% of the households that employ domestic workers are low-income themselves[.]”

Next Steps

For the latest information on California’s labor and employment law landscape, please join us for our upcoming webinar, “California Legislative Update: A Busy 2023 Brings Big Changes for Employers,” which will take place on Monday, October 30, 2023, from 11 a.m. to 12 noon (PDT). The speakers, Christopher W. Olmsted and Charles L. Thompson, IV, will discuss the key takeaways from the recent legislative session. Register here.

Ogletree Deakins will continue to monitor developments with respect to occupational safety and health laws and regulations and will provide updates on the firm’s California and Workplace Safety and Health blogs as additional information becomes available.

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