California was a pioneer when it adopted the country’s first and—to date—only state-level heat illness prevention standard in 2005. Now the state’s Division of Occupational Safety and Health, known as Cal/OSHA, has proposed significant revisions to the regulations, potentially to be effective by 2015, if finalized.
The proposed revisions are in draft form and have been submitted to the Cal/OSHA Standards Board. If the board approves the proposal, formal rulemaking, including a public comment period, would begin.
“The proposal will enhance the safety of employees by clarifying the current requirements for providing water and shade to workers, minimizing disincentives for drinking water and taking rest periods, requiring additional observation and training during high-heat periods, and improving procedures for accessing first aid and emergency medical services,” said California Department of Industrial Relations Director Christine Baker, in the draft proposal sent to the board.
The deaths of seven workers have been confirmed as heat-related fatalities in the state since 2012. “We don’t want any illnesses or deaths related to heat, and these changes will raise the bar to prevent that from happening,” said Baker, whose department oversees Cal/OSHA.
The regulations apply to all employers with outdoor places of employment, although certain industries—agriculture, construction, landscaping, and oil and gas extraction—must follow additional high-heat procedures when temperatures hit a certain degree.
Among the proposed revisions:
- Employers must provide drinking water as close as practicable but no more than 400 feet from employees at any time, with limited exceptions.
- The trigger temperature for the provision of shade would be lowered from 85 degrees to 80 degrees, and that shade is to be placed at a distance of no more than 700 feet from workers unless site conditions make that infeasible.
- The amount of shade required would be increased from an amount sufficient to accommodate 25 percent of the employees present to an amount sufficient to accommodate all employees who are on a meal period, rest period or recovery period at any given time.
- Workers who take a cool-down rest shall not be ordered back to work until any signs or symptoms of heat illness have abated. Employers also would have to monitor any such worker during the rest period and provide emergency services if symptoms worsen.
- Employers would have to implement high-heat procedures when the temperature equals or exceeds 85 degrees, instead of the current 95 degrees. High-heat employee monitoring would be clarified to include ensuring supervisory observation, mandating a buddy system, maintaining regular communication by radio or cellular phone, and a new requirement to review high-heat procedures during pre-shift meetings.
- Training topics would be expanded to include the employer’s responsibilities and workers’ rights related to heat illness prevention, and appropriate first aid and emergency responses to the different types of heat illness.
- Written heat illness prevention procedures, which would be called a “heat illness prevention plan,” would be enhanced, and written in both English and the language understood by the majority of employees.
The California Chamber of Commerce and a coalition of business partners, which includes the Western Agricultural Processors Association and the Associated General Contractors of California, are concerned that the proposed changes are unnecessary and burdensome.
“This proposal is unprecedented in its overly prescriptive approach,” said Marti Fisher, policy advocate for the Chamber of Commerce, based in Sacramento. “This micromanaging of workplaces is in conflict with Cal/OSHA’s long-standing practice to provide performance rather than prescriptive standards.”
Fisher said employers have a high rate of compliance with the current regulations and Cal/OSHA has not shown the need nor provided any evidence of necessity to justify the proposed changes. Cal/OSHA’s own data show similar findings, citing “steady progress” in increasing employer compliance with the current heat illness prevention regulations. Citations are issued most frequently for not preparing written heat illness prevention plans properly or a lack of employee training, rather than providing insufficient water or access to shade, according to information shared with the Cal/OSHA Advisory Committee in 2013.
Jackson Lewis attorney Tressi Cordaro agrees that the lack of data supporting the proposed revisions is troubling. “A lot of the rationale behind the proposed amendments is the Division’s experience and/or observations in the field, rather than any specific data suggesting there remains a significant risk of injury to heat-related illnesses under the current standard,” she said.
“While the Division claims that the proposed amendments attempt to clarify the current requirements, the revisions create greater ambiguity. For example, the amendments require that water provided must be ‘fresh, pure and suitably cool.’ What does ‘pure’ mean? What does ‘suitably cool’ mean? And how does an employer trying to avoid a citation make that determination when providing water to employees?”
In addition to regulatory efforts, Gov. Jerry Brown amended California’s labor code June 28, 2014, when he signed into law a bill requiring workers to be paid during mandated rest and recovery periods in jobs where there is a high risk of heat-related illness and injury, such as agriculture, landscaping and transportation. Current law requires employers to provide workers exposed to extreme heat at least a five-minute rest and recovery period in the shade, but workers often don’t take advantage of these breaks because they’re unpaid, according to the bill’s sponsor, Sen. Alex Padilla, D-Pacoima.
Roy Maurer is an online editor/manager for SHRM.
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