California regulators may vote to adopt a far-reaching heat illness standard for indoor work areas. If adopted in its current form, some of the suggested provisions will be triggered when the temperature reaches 82 degrees Fahrenheit. The Cal/OSHA Standard Board’s rule creates additional challenges for California employers already burdened by some of the nation’s most strict safety regulations. The proposed rule would be most difficult to meet compliance obligations for warehouses, distribution centers, and manufacturing plants where the indoor temperature is not easily controlled, such as where dock bays or doors must remain open during the workday.
With the most recent revision on Aug. 4, 2023, the proposed regulation scales back requirements from previous versions. However, it adds several requirements for employers with indoor work areas when the temperature reaches 82 degrees.
- California employers must establish, implement, and maintain an effective written indoor heat illness prevention program. The written program must include procedures for accessing water, close observation, cool-down areas, and emergency response measures.
- Like the Outdoor Heat Illness Prevention Plan, employers must effectively train their employees and supervisors on the mandated heat illness topics.
- Employers must provide employees with access to cool-down areas maintained at a temperature below 82 degrees, blocked from direct sunlight, and not exposed to other high-radiant heat sources.
- In addition to the currently legislated break periods afforded employees, employers must permit and urge employees to take preventive cool-down rest periods. When employees take a cool-down rest period, the employer must actively monitor employees for symptoms of heat-related illness.
- Employers must conduct a 14-day acclimation period and closely observe new employees. All employees must be closely monitored during a heat wave where no effective engineering controls are in use.
Complex Compliance Challenges For Employers
The primary challenge is that employers must measure, document, and track the temperature and heat index when temperatures reach 87 degrees Fahrenheit. This challenge is further exacerbated if employees wear clothing that restricts heat removal or if they work in a high-radiant heat area because the temperature threshold needs only reach 82 degrees Fahrenheit to trigger the provisions of the proposed rule. When employers reasonably suspect the applicable threshold is met, the temperature must be measured, and again, when the temperature is expected to be 10 degrees or more than the prior measurements.
The second challenge is the rigid hierarchy of control measures required when the temperature reaches 87 degrees Fahrenheit, or 82 degrees Fahrenheit, where employees wear clothing restricting heat removal or working in a high-radiant heat area.
When employers address any safety challenge, the first step is to select and employ the correct hierarchy of control levels effectively. In this case, employers must use engineering controls to reduce and maintain the temperature and the heat index below the required threshold. Engineering controls such as installing and using air conditioning or cooling fans cool the work environment.
Suppose engineering controls are not feasible or insufficiently reduce the temperature and heat index. In that case, the use of administrative controls to minimize the risk of heat illness is required. Administrative controls change how people work, such as adjusting work shifts so employees work when it is cooler. Suppose engineering and administrative controls are not possible. In that case, employers must use appropriate personal protective equipment, such as water-cooled or air-cooled garments, to minimize the risk of heat illness.
Substantive Changes Provide Compliance Relief
While it is inevitable that legal challenges will occur in its current form, the latest revised draft of the proposed rule released on Aug. 4 by the Cal/OSHA Standard Board made several substantive changes, which is good news for employers.
Revisions:
- An exception was included for any indoor work location where employees are present for less than 15 minutes in any one-hour period. The indoor location must not normally be occupied or contiguous with a normally occupied location, such as a storage closet or shed, and the exception does not apply to vehicles and shipping containers.
- For employees who work indoors and outdoors, employers may opt to comply with the indoor heat illness rule, not the outdoor heat illness rule, so they do not have to focus on complying with two competing heat illness rules simultaneously. However, an employer cannot comply with the engineering controls required under the indoor heat illness rules for outdoor work since the outdoor temperature cannot be reduced.
- Where employees wear clothing that restricts heat removal, control measurements are triggered at 82 degrees Fahrenheit rather than 87 degrees unless the employer can demonstrate that the clothing is constructed only of knit or woven fibers or an air and water vapor-permeable material.
- Under the new revisions, a cool-down area means an area that is blocked from direct sunlight and is shielded from other high radiant heat sources to the extent feasible. The feasibility exception is a high burden for employers to meet since Cal/OSHA interprets feasible as being possible.
- A preventative cool-down rest period has the same meaning as a recovery period in Labor Code subsection 226.7(a), affording employees daily premium pay where they are not taking necessary recovery periods. This change penalizes employers when an employee is not afforded a recovery period, requiring the employer to compensate for premium pay. It is likely to increase wage and hour litigation for employers.
- Vehicles with effective and functioning air conditioning are not subject to temperature monitoring and control measures.
- An employer’s training program for indoor heat illness can be integrated into its outdoor heat illness training.
- Employers must train all employees on the risks of heat illness in the workplace.
The training must include:
- Environmental and personal risk factors for heat illness
- The employer’s procedures for complying with the indoor heat illness prevention regulations
- Supervisors must receive additional training that includes requirements related to responding to symptoms of heat illness and instructions on monitoring and responding to hot weather advisories.
When Is This Likely To Go Into Effect?
The proposed regulation has undergone many revisions since it was introduced years ago. However, this latest draft is likely close to being adopted. The regulation will probably be voted on by early 2024.
By HR & Safety Upgrade
