Major revisions to Cal/OSHA's heat illness prevention standard

March 02, 2015

OSHA Law Alert

Author(s): Jeffrey M. Tanenbaum

California’s Occupational Safety & Health Standards Board (the “Board”) has now voted to approve major revisions to the state’s heat illness prevention standard (8 CCR 3395). Significantly, the Board has requested an early effective date from the Office of Administrative Law. If the request is approved, the revisions will take effect May 1 (in time for the growing season), instead of July 1. In other words, affected employers will have just a few weeks to revise their heat illness prevention plans, institute new procedures and update training. Employer representatives pointed out that there was little or no evidence that the existing standard was insufficient and there was no scientific basis for a number of the revisions. However, the Board still approved the revisions.

Employers with outdoor worksites should now prioritize a review and update of their heat illness prevention plans. Employers will not only face Cal/OSHA penalties if they are not in compliance, but also additional Labor Code penalties for failure to provide heat recovery periods. See Labor Code § 226.7.

A summary of the important revisions to the standard is as follows:

  • The threshold for automatically providing shade has been lowered from 85 degrees to 80 degrees. Shade must now be provided by means “that does not deter or discourage access or use.” This phrase does not appear to truly be an occupational safety or health standard but one catering to preference. And it seems ripe for “gotcha” disputes over what exactly discourages access or use. Additionally, the shade provided must accommodate all employees who are on a rest or recovery period (previously the shade needed to accommodate only 25% of the employees on shift). During meal periods, the shade must accommodate all employees on their meal period who remain on-site.
  • Drinking water must be “fresh, pure, and suitably cool.” It must be provided free of charge. And it must be located “as close as practicable” to the employees’ working areas. The phrase “as close as practicable” again seems ripe for “gotcha” disputes, and we have already seen cases in which there have been disputes over what constitutes “fresh, pure, or suitably cool.” As examples: Is bottled water “fresh”? Can coolers be filled the night before a shift? What exactly is “pure”? How cool is “suitably cool”?
  • When an employee chooses to take a preventative cool-down rest, the employer must monitor the employee, ask if he or she is experiencing symptoms of heat illness, and encourage the employee to remain in the shade. If the employee exhibits signs or reports symptoms of heat illness, the employer must provide appropriate first aid or emergency response. The employer cannot order the employee back to work until any signs or symptoms of heat illness have abated.
  • The high-heat procedures (applicable when the temperature meets or exceeds 95 degrees) were expanded in several ways:
    • The requirement that employers observe employees for alertness and signs or symptoms of heat illness was expanded to list specific means of observation: (1) a mandatory buddy system, (2) observation by a supervisor or designee (for 20 or fewer employees), or (3) regular communication with a solo employee (e.g., by radio or cell phone).
    • The employer must designate one or more employees at each worksite as authorized to call for emergency medical services. Other employees may call when no designated employee is available.
    • Employers must conduct pre-shift meetings covering high-heat procedures, encouraging employees to drink plenty of water and reminding employees of their right to take cool-down breaks.
    • There are additional rules for agricultural employers who most notably must ensure that employees take a minimum ten-minute net preventative cool-down rest period every two hours in high-heat conditions.
  • A section on emergency response procedures was added, requiring employers to:
    • Respond appropriately to signs and symptoms of possible heat illness, including not leaving affected employees alone, and providing first aid or emergency medical services
    • Provide a reliable method for contacting emergency medical services. (A cell phone may be used only if reception in the area is reliable.)
    • Contact emergency medical services when necessary—and provide them with clear and precise directions to the worksite.
    • Transport affected employees to a place where an emergency medical provider can reach them, if necessary
  • A section on acclimatization was added, requiring the employer to closely observe all employees during a heat wave. (A heat wave means any day when the predicted high is at least 80 degrees and at least 10 degrees higher than the average high of the last five days.) Additionally, employers must closely observe newly assigned employees for 14 days, even if the employees had been doing similar outdoor work over the past month.
  • Employee training must now include the following:
    • The employer’s responsibility to provide work, shade, cool-down rest periods, and access to first aid
    • An explanation of an employee’s right to exercise the provisions of the standard without retaliation
    • The “concept” and methods of acclimatization
    • Appropriate first-aid and medical response and an explanation that heat illness may progress quickly from mild to life threatening
  • The requirement that employers have a written heat illness prevention plan was expanded to specify that:
    • The plan must be in both English and in the language understood by the majority of the employees.
    • The plan must be made available at the worksite.
    • At a minimum, the plan must contain the procedures for providing access to water and access to shade, the high heat procedures, emergency response procedures and acclimatization methods and procedures.
    • The plan may be included as part of the employer’s illness and injury prevention program

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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