Likely to Take Effect May 1, 2015 — The Heat Is On For California Employers

As referenced in our previous article, Required Heat Illness Prevention for Outdoor Worksites, California’s heat illness safety regulations currently require employers with outdoor workers to provide access to ample drinking water and a shaded rest area when the temperature exceeds 85 degrees. The law also requires additional special high heat procedures in temperatures of 95 degrees or above as well as training and preparatory steps for preventing and rectifying heat illness. The heat illness guidelines apply to all outdoor places of employment including partial structures depending on the circumstances. Current regulations also require employers to count the time employees spend in recovering from high heat as “hours worked” without wage deduction.

Occupational Safety & Health Standards Board (OSHSB) has recently sent revised heat illness prevention regulations to the Office of Administrative Law (OAL) for final approval, including a requested accelerated May 1, 2015 effective date in time for the state’s growing season and warmer climate.

A March 23, 2015 government-issued Guidance for Employers and Employees on the New Requirements explains the key differences between existing and the proposed amended language, including:

            1. Specified definition of drinking water: Currently, the minimum requirement is that drinking  water must only be clean and sanitary. The amendment would clarify that all outdoor employees will require access to drinking water that must be “fresh, pure, suitably cool” and provided “free of charge.” The water shall be located “as close as practicable” to the employees’ work area.
            2. Increased access to shade: Employers would have to provide shade when the temperature exceeds 80 degrees Fahrenheit, instead of the current 85 degrees, and accommodate all outdoor employees who are on cool-down rest periods or other breaks instead of the current requirement of accommodating 25 percent of employees working outside.

           3. Monitoring of heat prevention cool-down: Cool-down rest periods would be expanded to include “preventative” cool-down and would create a new monitoring requirement. Specifically, employers would have to: (a) allow and encourage preventative cool-down rest breaks; (b) monitor and ask if the employee is experiencing heat illness symptoms; (c) encourage the employee to remain in the shade; and (d) wait until all signs/symptoms of heath illness have abated or the employee has rested for five minutes in the shade, whichever is greater. If exhibiting or reporting heat illness symptoms, the employer would also have to provide first aid or emergency response.

          4. High heat procedures modified: Although high-heat procedures remain at 95 degrees, the employer would have to implement additional high-heat procedures such as: (a) observing all employees for alertness and signs or symptoms of heat illness by appointing a designated observer, a mandatory buddy system, regular radio or cell phone communication, or other effective means of observation; (b) designating at least one employee as authorized to call for emergency medical services; (c) pre-shift meetings to review high heat procedures; and, (d) for the agricultural industry the employer must ensure that the employee working in 95 degrees or above takes a ten minute preventative cool-down rest period every two hours.

          5. Additional employee training: Employee training would be expanded to include informing the employee of the employer’s responsibility to provide water, shade, cool-down rests, and first aid access. Training would also include information about first aid and emergency response procedures and how heat illness can progress quickly into a life-threatening situation. Employers must also notify employees of their ability to exercise their applicable rights without retaliation.
As soon as the OAL issues any final approval of these amended regulations, covered employees should promptly review them in their entirety, update existing heat illness and prevention plans and any related policy, implement appropriate emergency medical services plans (including designated individuals for each job site to call for emergency services) and train all employees and managers on revised procedures and prevention tips.

For further information, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin

Cindy Bamforth, April 7, 2015