By Hao Nguyen, Esq.
Senior Product and Regulatory Counsel
“There was a FIREFIGHT!” said Special Agent Paul Smecker, portrayed by the ever-talented Willem Dafoe, in the cult classic, The Boondock Saints. This movie routinely plays on the living room television about this time of year in the Nguyen household (Saint Patrick’s Day was on March 17th after all). Still, this quote becomes even more appropriate this year because it could have described the scene at the County Administration Center in San Diego held only four days later. On March 21st, The Occupational Safety and Health Standards Board (“Board”) held a public meeting to vote on the Indoor Heat Illness Rule (“Rule”). However, the day before, the Department of Finance rescinded its approval of the Standardized Regulatory Impact Assessment (“SRIA”), which is
a requirement when proposed regulation has an estimated economic impact exceeding $50 million. This would throw the public meeting over the Rule into sheer chaos.
Though it was not literally a “firefight,” it certainly felt that way: folks who traveled from afar to attend the meeting in person did not hold back their frustration as they chanted and marched around the room after they learned that no vote would be had. In a stunning turn of events, the Board voted unanimously to adopt the Rule after an initial adjournment, and did it in direct defiance of the Department of Finance. Whew.
What Happens Now?
The California Office of Administrative Law (“OAL”) has 30 days to review the rulemaking record to make sure that the process of passing the new rule was above board (pun intended…what do the kids say now, “lol”? LOL). After this period, the OAL can approve it and send it to the Secretary of State for finalization or disapprove it and send it back. Our friends at Fisher and Phillips believe that the Board will likely re-introduce the Rule in an effort to salvage it or even categorize it as an “emergency” Rule to take effect immediately to beat the summer heart. An outside chance would be the California legislature passing a law similar to Cal/OSHA’s Rule to bypass the regulatory process altogether (and with it SRIA).
The best thing that we can do now is to be prepared for the impending adoption. Here is a summary of California’s indoor heat illness rule, which is only the second of its kind in the country (Oregon is the first one).
California: Heat Illness Prevention in Indoor Places of Employment
The Rule can be easily broken down into four essential elements: Application, Documentation, Environment and Accessibility, and Recordkeeping and Employee Involvement. We’ll talk about each very superficially so as to not make this article 10 pages long, but rest assured, we have got you covered!
Application
This Rule will apply to all indoor work areas where the temperature equals to or exceeds 82 degrees Fahrenheit when employees are present. There are additional requirements if the temperature or heat index exceeds 87 degree Fahrenheit, or exceeds 82 degrees Fahrenheit where employees are wearing clothing that restricts heat removal or work in high radiant heat areas. These additional requirements are called “Control Measures,” which are discussed below. The regulation provides some examples of clothing that restricts heat removal, which we will also discuss below.
Documentation
Heat Illness Prevention Plan (HIPP)
The HIPP must be made available to all employees at the worksite and available in English and any language understood by the majority of employees at the worksite. The HIPP may be part of the dealership’s Illness and Injury Prevention Program and must, at a minimum, cover the following topics:
- Procedures for providing water to employees;
- Procedures for providing access to cool-down areas;
- Procedures to measure the temperature and heat index and recording whichever is higher;
- Procedures to identify and evaluate other environmental risk factors for heat illness and implement control measures;
- Procedures for emergency response; and
- Procedures for close observation during acclimatization.
Employee Training
Non-supervisory employees must be trained on the topic of heat illness. Topics to be included in this training include, but are not limited to:
- Environmental and personal risk factors for risk illness, and the added burden of heat load caused by exhaustion, clothing, and personal protective equipment (PPE);
- Employer’s procedures and responsibilities for complying with the Rule, such as providing water, cool-down rest periods, control measures, and access to first aid;
- Employees’ right to exercise their rights under the Rule without retaliation;
- Importance of drinking water throughout the day in small quantities, especially when the work environment is hot;
- Concept, importance, and methods of acclimation;
- Various signs and symptoms of heat illness and appropriate first aid and emergency response;
- Importance of employees immediately reporting to the employer any symptoms or signs of heat illness in themselves or in co-workers;
- Procedures for the employer to respond to symptoms or signs of heat illness; and
- Procedures for the employer to contact emergency medical services, or transporting employees to a safe place to be reached by an emergency responder.
Supervisory employees must take training that covers those topics above but it must also include the procedures to implement applicable requirements of the Rule, how to respond when an employee exhibits signs or symptoms consistent with heat illness, and how to monitor weather reports and respond to hot weather advisories.
Environment and Accessibility:
Cool-Down Areas
A cool-down area is an indoor or outdoor area that is covered from direct sunlight and shielded from other high radiant heat sources. It is either open to the air or provides proper ventilation or cooling. The area must encourage employees to use it as needed and allow the body to cool, and not expose the employee to unsafe or unhealthy conditions. Potable water must be present in these cool-down areas at all times. Where drinking water is not plumbed or otherwise continuously supplied, drinking water must be supplied in sufficient quantities at the beginning of a work shift at a rate of one quart per employee per hour for drinking the entire shift.
The area must be large enough to allow employees on recovery or rest periods to sit in a normal posture without having to be in physical contact with one another and located as close as practicable to the areas where the employees are working. It must be maintained at less than 82 degrees Fahrenheit unless the dealer can demonstrate that it is infeasible.
Preventative Cool-Down Rest
Dealers must encourage employees to take a preventative cool-down rest in a cool-down area when the employees believe they need it. When employees are in these rest periods, they must be closely monitored and asked if they are experiencing symptoms of heat illness, encouraged to remain in the cool-down area for as long as necessary, and must not be ordered back to work until any signs or symptoms or heat illness have abated.
Control Measures
As noted above, there are additional requirements if the temperature or heat index exceeds 87 degree Fahrenheit, or exceeds 82 degrees Fahrenheit where employees are wearing clothing that restricts heat removal or work in high radiant heat areas. Known as “control measures,” these measures can be broken down further into two categories: engineering controls and administrative controls.
- Engineering Controls. These types of controls are devices that remove or reduce hazardous conditions or creates a barrier between the employee and the hazard. Some examples of engineering controls that may be effective in minimizing the risk of heat illness are air conditioning systems, cooling fans, mist fans, evaporative coolers, and exhaust ventilation.
- Administrative Controls. These types of controls are methods to limit exposure to a hazard by adjustment of work procedures, practices, or schedules; things you can control “administratively” to ensure that your employees can avoid heat illness. This includes changing work schedules to earlier or later in the day, rotation shifts, reducing work intensity, changing clothing requirements, or using relief workers.
As noted above, the threshold goes down to 82 degrees Fahrenheit where employees are wearing “clothing that restricts heat removal.” Some examples of this type of clothing are those pieces that are waterproof or designed to protect against biological, physical, radiological, fire, or contamination hazards.
Recordkeeping and Employee Involvement:
This new regulation has significant recordkeeping requirements that employers will need to continuously monitor and update. Fortunately, employers can create effective procedures to involve employees in the planning, conducting, and recording of these measurements, and identifying and evaluating other risk factors for heat illness. Below are some of the items employers will need to record when the temperature or heat index of the indoor work area exceeds 87 degrees Fahrenheit, or 82 degrees Fahrenheit when employees are A) wearing clothing that restricts heat removal or B) working in high radiant heat areas.
The temperature or heat index measurements, whichever value is greater, must be recorded when the employer suspects that indoor temperatures exceed 87 degrees Fahrenheit (or 82 degrees Fahrenheit meeting the above requirements). Specifically, the employer must record the following:
- Record the date, time, and specific location of all of the measurements;
- Initial measurements must be taken where employees work and at times during a shift when employee exposures are expected to be the greatest;
- Measurements must be taken again when they are reasonably expected to be 10 degrees or more above the previous measurements;
These records must be maintained for 12 months or until the next measurements are taken, whichever is later, and made available to worksite employees and to Cal/OSHA officials upon request.
Questions?
ComplyAuto Safety will have processes in place for all of our California dealers if and when this regulation becomes effective. For more information, contact us at info@complyauto.com.