Analysis
California issued a new indoor heat standard on July 23 that impacts any business with employees working in the state, not just those organizations based there. The action follows a similar proposed workplace heat rule published earlier in July by the U.S. Occupational Safety and Health Administration (OSHA).
In recent years, the incidence of heat illnesses among the workforce has attracted increased attention among both federal and state safety enforcers. This includes a federal OSHA National Emphasis Program that has targeted a broad range of industries. One reason is that the symptoms can creep up on a worker without warning when adequate precautions are not taken.
Other states, such as Minnesota, Oregon and Washington State, also have adopted workplace heat rules, as have some cities and localities, like Phoenix.
The new California regulations hewed a rugged road before they could be issued in their final form. The current standard started taking shape as far back as 2006, when Cal/OSHA started the ball rolling by initially developing a heat illness prevention standard for outdoor workplaces. Work on the indoor standard began following passage of enabling legislation by the state legislature 10 years later.
In the end, adoption of the final rules took place only after a meeting of state officials, members of the public and stakeholders (meaning unions) back in March when the audience erupted in rage after the government representative chairing the meeting announced that the rule had been removed from the meeting agenda.
After the announcement that the proposed heat illness prevention rule was removed from the meeting agenda the night before for unexplained reasons, some audience members who refused to stop chanting and beating a drum had to be removed by law enforcement.
Presumably in support of the push to expedite the standard’s effective date, Cal/OSHA already had published guidance for employers, including a comparison of the outdoor and indoor standards. The guidance also includes a combined indoor and outdoor heat illness prevention model plan and an FAQ guidance, point out attorneys Robert Foster and Rachel Schuster of the law firm of Sheppard Mullin Richter & Hampton.
What Employers Should Do
The new regulation went into effect last month and mandates different practices for employers in two circumstances: when indoor temperatures reach 82°F and when they hit 87°F. It specifically applies to warehouses, distribution centers, manufacturing plants and restaurants, among other worksites.
In workplaces where 82 degrees maintains, employers must develop and adhere to a written Indoor Heat Illness Prevention Plan (IHIP). The plan must be in writing and in the language understood by the majority of the employees. Any plan should include provision of drinking water, implementation of preventative cool-down rest periods, and creation of emergency response procedures.
Employees also must undergo acclimatization that will allow them to adjust to hot environments over time to reduce the risk of heat-related illnesses. This means employers must closely observe employees who are newly assigned to high heat conditions for signs of heat stress during their first 14 days of work, Foster and Schuster explain. In addition, during a heatwave, if employers cannot reduce indoor heat using methods like air conditioning or fans, a supervisor must closely observe the employees’ health.
All employees who are at risk of exposure to the heat and their supervisors must complete training as well. The training needs to cover the environmental and personal risk factors for heat illness, and procedures for responding to heat illness, contacting emergency medical services, transporting employees to where they can be reached by an emergency responder if necessary, and ensuring clear directions to the worksite will be provided to emergency responders.
Requirements are added when the temperature/heat index reaches 87°F or higher, or where the temperature/heat index is 82°F but feels hotter because employees are wearing clothing that makes heat removal difficult or are working in high radiant heat areas. These extra requirements include measuring and recording the temperature and heat index and implementing control measures.
Control measures may include engineering controls (such as installing air conditioning, adding heat-reducing insulation, using reflective coatings or materials to block heat radiation from equipment or the sun) or administrative controls, like adjusting work schedules to avoid the hottest parts of the day, rotating employees to cooler tasks, and increasing the frequency and duration of breaks in cool areas.
If it turns out that engineering and administrative controls are not enough to decrease the heat exposure adequately, the employer should provide “personal heat-protective equipment” (such as vests filled with ice packs, uniforms with fabrics that wick away sweat and allow ventilation, and portable battery-operated fans, the attorneys recommend.
The new rule does not apply to workplaces with brief heat exposure where an employee is exposed to a temperature/heat index at or above 82°F and below 95°F for less than 15 minutes in any 60-minute period, employees who telework, and emergency operations directly involved in the protection of life or property.
