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California OSH Board Proposes Revisions to Heat Prevention Regulations

On August 8, 2014, the California Occupational Safety and Health Standards Board (“Cal OSH Board”) proposed revisions to its Heat Prevention Regulations at Title 8, Section 3395 (“Section 3395”).   According to the Cal OSH Board, the revisions are aimed at improving worker safety in all outdoor places of employment and reducing the incidence of heat illness.  Although the proposed revisions have not yet been adopted, outdoor employers should closely watch the Board’s upcoming actions because the revisions may require them to invest significant resources to change their programs, training, and approach to the prevention of heat illness.

By way of background, Section 3395 was adopted in 2005 as the first heat illness prevention regulation in the nation.  California remains the only state to regulate the prevention of heat illness.  Currently, Section 3395 requires outdoor employers to provide potable drinking water and access to shade.  Specifically, Section 3395 states that outdoor employers must erect shade at temperatures above 85 degrees Fahrenheit (“F”); that the shade accommodate 25% of the employees; and that employees be allowed and encouraged to take a cool-down rest in the shade for at least five minutes.  Section 3395 also requires additional precautionary monitoring measures of employees when the outdoor temperature is at or above 95 F.  Finally, Section 3395 requires that outdoor employers have training and emergency procedures for responding to symptoms of possible heat illness.

As currently phrased, the proposed amendments would revise the requirements of Section 3395 in the following ways: (1) specifying that drinking water must be provided at no cost and be fresh, pure, suitably cool and located within 400 feet unless prohibited by site conditions; (2) requiring that shade be present when the temperature exceeds 80 F, be sufficient to accommodate all employees on break, and be located within 700 feet of employees unless that is not feasible; (3) requiring that an employee taking a cool-down rest be monitored and encouraged to remain in the shade until symptoms have abated; (4) lowering the threshold temperature for initiating high heat procedures from 95 F to 85 F; (5) specifying that new high heat procedures include the means for monitoring and observing employees for signs and symptoms of heat illness, designation of an employee at the worksite who is authorized to call for emergency medical services, and a pre-shift meeting to cover high heat precautions; (6) requiring a net ten minute recovery period (which may be concurrent with other required breaks) for every two hours that an employee in agriculture works continuously in temperatures equal to or exceeding 95 F; (7) specifying that workers receive additional training on the new regulations; (8) adding new elements to the required written heat illness prevention procedures, which would now be called a heat illness prevention plan; (9) requiring that supervisors take immediate action if an employee exhibits symptoms of heat illness; and (10) prohibiting an employer from sending home an employee who was exhibiting signs or symptoms of heat illness without first offering onsite first aid or providing emergency medical services.

Moving forward, outdoor employers who would be subject to the proposed revisions are strongly encouraged to monitor the Cal OSH Board’s next steps.   If the proposed revisions are adopted, covered employers will need to significantly revise their heat illness risks and prevention programs to ensure compliance with California law.  To express concern regarding the proposed revisions, the Cal OSH Board has invited comments until September 25, 2014, which is when a public hearing is scheduled in San Diego at 10 a.m. in Room 310 of the County Administration Building, located at 1600 Pacific Highway.

Jackson Lewis P.C. © 2020National Law Review, Volume IV, Number 228

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About this Author

William E. Weiner, Employment Attorney, Jackson Lewis Law Firm
Associate

William Elliot Weiner is an Associate in the Los Angeles, California office of Jackson Lewis P.C.

(213) 689-0404
Adam Siegel, Employment Attorney, Whistleblower claims, Jackson Lewis Law FIrm
Principal

Adam Y. Siegel is a Shareholder in the Los Angeles, California office of Jackson Lewis P.C.

Mr. Siegel focuses mainly in employment litigation and represents both private and public sector employers in all aspects of employment law, specializing in litigation and trial of harassment, discrimination, breach of contract, wage/hour, due process, and other employment related claims and has litigated cases in both state and federal court.  As part of his extensive public sector experience, Mr. Siegel has conducted and prepared Investigation Reports pursuant to the California Government Code and has handled unfair labor charges brought in front of the Public Employment Relations Board. Mr. Siegel has authored “Furloughs: An Option for Dealing with Fiscal Crisis”, published in The California Public Sector Employerand "NCAA Passes Sickle-Cell Testing: Does It Discriminate Against or Protect Athletes?", published in the Sports Litigation Alert.

213-630-8241