Seyfarth Synopsis: On June 20, 2024, the first day of summer, the Cal/OSHA Standards Board turned the heat up on employers and unanimously voted to approve Cal/OSHA's indoor heat rule. Employers should be prepared to comply with the rule as early as August 1, 2024.
After years of delay, the Cal/OSHA Standards Board unanimously adopted Cal/OSHA's indoor heat illness prevention rule. Not wanting to be left in the dust, on June 21, Cal/OSHA published various guidance documents, including a model written program and FAQs on the new requirements, for California employers to rapidly come into compliance.
It's Getting Hot In Here For Almost All California Workplaces
The new rule applies to most indoor work areas in California when the indoor temperature equals or exceeds 82°F when workers are present. It does not apply to:
- Prisons, local detention facilities, and juvenile facilities;
- Places of employment where workers are teleworking that are not under the employer's control;
- Emergency operations directly involved in the protection of life or property; or
- Incidental heat exposures where a worker is exposed to temperatures at or above 82°F and below 95°F for less than 15 minutes in any 60-minute period (but this exception does not apply to vehicles without effective and functioning air conditioning, or shipping or intermodal containers during loading, unloading, or related work)
Controls Needed When The Heat Is On
Additionally, employers must implement engineering and administrative controls when one of the following conditions exists:
- The temperature or heat index indoors is at least 87°F when workers are present;
- Workers wear clothing that restricts heat removal and the temperature is at least 82°F; or
- Workers work in a high radiant heat area and the temperature is at least 82°F.
In these higher-heat conditions, employers must take steps to reduce the temperature and heat index to below 87°F (or temperature to below 82°F for employees working in clothes that restrict heat removal or high radiant heat areas). Engineering controls should be the first step, including cooling fans or air conditioning, increasing natural ventilation, and cooled benches. Administrative controls are a second line of defense, such as modifying work schedules and requiring mandatory rest breaks.
Access to Water and Cool Down Areas When Employees Are Feeling Hot, Hot, Hot
Employers must provide at least one quart of free, potable, fresh, and suitably cool drinking water to all workers in covered workplaces and working conditions per hour for the entirety of their shifts. If the full-shift quantity of drinking water is not available to workers at the start of a shift, the regulation requires written procedures for replenishing sufficient quantities of drinking water throughout the shift.
Not only must employers provide water, but they also must remind and encourage workers to drink it throughout their shifts and emphasize the importance of drinking water in training sessions.
Employers must also provide and maintain at least one cool down area at all times when workers are present. A cool down area must satisfy certain safety requirements, be blocked from direct sunlight, be shielded from high-radiant heat sources, and either be open to the air or have ventilation or cooling. These areas must be large enough to accommodate all workers on recovery, rest, or meal periods, and allow workers to sit in a normal posture without having to touch other workers.
It Feels Like Summertime, But How Hot Is It?
Under the new regulation, employers must measure the temperature and heat index, and record whichever is greater when the temperature or heat index reaches 87°F (or temperature reaches 82°F for employees working in clothing that restricts heat removal or high radiant heat areas).
Temperature must be measured in the immediate area where workers are located using a thermometer that is exposed to the air but shielded from radiant heat sources (the sun, hot surfaces, hot liquids, and fire).
Heat index, on the other hand, can be determined in two ways:
- Use a heat index monitor that measures both temperature and relative humidity and utilizes National Weather Service heat index equations to determine the heat index.
- Calculate the heat index by measuring the indoor temperature with a thermometer and relative humidity with a hygrometer, then use the chart found in Appendix A of the new regulation, Title 8, section 3396.
Hot Town, Summer in the City (or Not) – Employers Must Observe New Workers
Acclimatization is another key to compliance with the new rule, i.e. the process by which the body adjusts to increased heat exposure. Acclimatization is typically achieved within 4 to 14 days of regular work involving at least 2 hours per day in the heat. For the first 14 days of an assignment a supervisor or designated worker must closely observe workers who have been newly assigned to any of the following:
- A work area where the temperature or heat index, whichever is greater, reaches at least 87°F;
- A work area where the temperature or heat index, whichever is greater, reaches at least 82°F where workers wear clothing that restricts heat removal; or
- A high-radiant-heat area where the temperature reaches at least 82°F.
Additional requirements will apply during a heat wave (i.e., any day when the predicted outdoor temperature will be at least 80°F and at least 10°F greater than the average high daily outdoor temperature for the five preceding days) where no effective engineering controls are in use to control the effect of outdoor heat on indoor temperature.
Implementing Emergency Response Procedures for Employees Feeling the Heat (Wave)
To mitigate the risk of harm to employees from heat-related exposure, the new rule, and its corresponding guidance requires employers to have effective emergency response protocols that:
- Ensure that supervisors and workers are trained to recognize the signs and symptoms of heat illness;
- Provide basic first aid (such as cooling towels and shade);
- Obtain emergency medical services; and
- Not allow a worker with signs or symptoms of heat illness to be left alone or sent home without being offered onsite first aid or provided with emergency medical services.
Employers must be prepared to transport workers safely to a place where they can be reached by an emergency medical provider when necessary. The goal is to stop the rapid progression to more serious illness.
Put It in Writing Before The Heat Of The Moment
As many California employers are already aware, Cal/OSHA is keen on requiring its safety plans to be memorialized in writing. Not surprisingly, the new indoor heat rule requires employers to have a written heat illness prevention plan that includes procedures for:
- Providing sufficient water;
- Providing access to cool down areas;
- Measuring the temperature and heat index and recording whichever is greater;
- Identifying and evaluating environmental risk factors for heat illness, and implementing control measures;
- Emergency response protocols; and
- Acclimatization.
Cal/OSHA has already published a model written plan that employers can use as a starting point. However, Cal/OSHA cautions that a heat illness prevention plan must be specific and customized to an employer's operations to satisfy the standard. Employers must also train workers and supervisors so they understand and can implement the employer's plan.
What's Next on These Summer Nights?
While for some, its summertime and the living's easy, the Office of Administrative Law (OAL) has 30 days to review the indoor heat rule for compliance with the California Administrative Procedure Act and integrate it into the administrative rules. The Standards Board informally requested the OAL to expedite finalization of the regulation. The Cal/OSHA Deputy Chief noted that he will request immediate enactment of the regulation upon OAL approval, though immediate enactment is not guaranteed.
If the OAL approves the rule but does not make it effective immediately, employers can expect an effective date of October 1, 2024. If the OAL makes it effective immediately, employers can expect an effective date as early as August 1, 2024.
Workplace Solutions
Employers should prepare to comply with the indoor heat rule in the next 30-60 days. But don't sweat it, the authors, your favorite Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team are here to advise on compliance with these new requirements.
Edited by Cathy Feldman, Coby Turner & Elizabeth Levy
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.