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Labor & Employment Legal Alert
April 10, 2015              
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Immediate Action Required: Employers With Outdoor Workers Need to Update Their Heat Injury Illness Programs

This week, the California Occupational Safety and Health Standards Board confirmed that new major changes to the state's heat illness prevention regulations will take effect on May 1, 2015. In response to the new regulations, employers with outdoor workers in California should promptly review and update their heat illness prevention programs to comply with the new rules. Employers will need to adopt new required procedures to prevent heat illness, revise their written policies, and update their training protocols. To help explain what the new regulations require of employers, Cal/OSHA has issued a summary chart entitled "Guidance for Employers and Employees on the New Requirements," which can be found here. In addition, Cal/OSHA has updated their Q&A webpage on Heat Illness Prevention Enforcement, which can be found here.

Highlights of the recent changes to the Cal/OSHA regulations include: 

New Requirements For Outdoor Places Of Employment 

  • Water – Must Be Fresh, Pure, Suitably Cool, Free And As Close As Practicable To Work Areas

    Employers must ensure that employees have access to potable drinking water that is fresh, pure, suitably cool, and provided to employees free of charge. A new requirement is that the water must be "located as close as practicable to the areas where the employees are working." 
  • Shade – Required If Above 80 Degrees; Still Required If 80 Degrees Or Below Upon Employee Request

    Access to shade is required when the temperature exceeds 80 degrees Fahrenheit (before the changes to the regulations, the standard was 85 degrees). The area of shade now must be large enough to accommodate the number of employees on cool-down periods and rest breaks. The amount of shade must be large enough to accommodate the number of employees who remain onsite during meal periods. Please note that, as under the previous version of the regulations, employers still must provide shade upon an employee's request, regardless of the temperature. 
  • Cool-Down Periods – Employees Must Be Monitored, Asked About Heat Illness Symptoms, And Provided A Minimum Of Five Minutes Of Net Resting Time

    As before, employees must be allowed and encouraged to take a cool-down period when they feel the need to do so to protect themselves from overheating. Now, however, an employee who takes a cool-down period: (1) must be monitored and asked if he or she is experiencing symptoms of heat illness; (2) must be encouraged to stay in the shade; (3) must not be ordered back to work before he/she has had at least five minutes of net resting time; and (4) must not be ordered back to work "until any signs or symptoms of heat illness have abated," even if this abatement period takes longer than five minutes. When an employee on a cool-down period exhibits or reports symptoms of heat illness, the employer must provide appropriate first aid or implement emergency response procedures. 
  • High-Heat Procedures – Pre-Shift Meetings, Day-Long Monitoring, And Emergency Preparedness

    As before, employers in the following industries must have high-heat procedures, (triggered at 95 degrees): (1) agriculture; (2) construction; (3) landscaping; (4) oil and gas extraction, and transportation; or (5) delivery of agricultural products, construction materials or other heavy materials.

    There are, however, several new additions to the high-heat requirements. First, when the temperature reaches or exceeds 95 degrees, the employer must now conduct meetings with the employees before commencing work. During these "pre-shift" meetings, which are on paid time, the employer must review the high-heat procedures, encourage employees to drink plenty of water, and remind employees of their right to take cool-down periods when necessary. Second, during the workday, the employer must ensure effective monitoring/observation for signs of heat illness, such as through adopting a buddy system, tasking a supervisor with monitoring crews of 20 or fewer employees, or any other "effective means of observation." Third, the employer must now designate at least one employee at each worksite as being a person who is authorized to call for emergency medical services if the need arises.

    For employees in agriculture, when the temperature reaches or exceeds 95 degrees, the employer must do more than make cool-down periods available. Instead, the employer must "ensure" that the employees take a 10-minute cool-down period every two hours. These 10-minute cool-down periods for agricultural employees may be taken concurrently with any other meal period or rest breaks required by law so long as their timing coincides with the timing of meal period and/or rest breaks. 
  • Emergency Response Procedures – Ensuring That Employees Can Call For Help, Receive Immediate Onsite Attention From Supervisors, And Attention From Emergency Medical Responders

    The revised regulations now specifically require "effective" emergency response procedures in heat illness prevention programs. Such requirements include: (1) all employees at the worksite must be able to contact (through "effective communication") a supervisor or summon emergency medical services; (2) when an onsite supervisor observes or receives a report of heat illness symptoms, he or she must take immediate action, including offering the affected employee first aid or emergency medical services if the symptoms are severe; (3) an employer must transport, if necessary, an affected employee to a location where he/she can be reached by an emergency medical provider; and (4) an employer must be able to provide emergency medical providers with clear and precise directions to the worksite. Please note that using a cellular phone for calling or texting is considered "effective communication" only if reception in the work area is reliable. 
  • Acclimatization Procedures – Monitoring Employees Who Work During Heat Waves And In High-Heat Areas

    During a "heat wave" a supervisor or designee is required to closely observe all employees at the worksite. A "heat wave" is any day in which the predicted high temperature for the day is at least 80 degrees and at least ten degrees higher than the "average high daily temperature in the preceding five days."

    In addition, an employee who has been "newly assigned" to a high heat area must be closely observed by a supervisor or designee for the first 14 days of the employee's work. 

Revised Requirements For Written Heat Illness Prevention Plans 

  • Heat Illness Prevention Plan – Employers Must Revise, Translate, And Make Available

    The new Cal/OSHA regulations require employers to establish and maintain a heat illness prevention plan that includes the new procedures discussed above. The plan must be written "in both English and the language understood by the majority of employees." Finally, this written plan must be made available at the worksite for employees and Cal/OSHA representatives to inspect upon request. 

Revised Training Requirements 

  • Heat Illness Training – Employers Must Cover The New Regulations

    California employers must update their training protocol to cover the substance of the new regulations. The new and/or revised training topics for employees and supervisors include: (1) the employer's responsibility to provide water, shade, cool-down breaks, and access to first aid; (2) the employee's right to be free from retaliation for exercising his/her rights under the regulations; (3) the concept of acclimatization, the importance of acclimatization, and the acclimatization procedures in the employer's heat illness prevention plan; (4) the appropriate first aid and/or emergency responses to the different types of heat illness; and (5) the fact that heat illness may progress quickly from mild symptoms and signs to a serious and life threatening illness.

Please note that many other requirements did not change (but are not listed above). For the full regulations, please click here. Please also note that the new regulations are broadly and vaguely worded in many respects and raise numerous questions of interpretation. For assistance with interpreting the revised heat illness prevention regulations and with updating written procedures and training protocols, please contact Allen Matkins.

 

Benjamin J. Kim Benjamin J. Kim
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