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California's Heat-Illness Rules in Spotlight Again

By Toni Vranjes  3/26/2014
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In California the weather can be a blessing, but it also can be a huge concern. For anyone from farmworkers picking fruit to construction crews working under the blazing sun, heat illness can pose a huge threat. Those worries spurred the state to put protections in place nearly a decade ago.

Now the state’s requirements for heat-illness prevention are once again under scrutiny.

Facing calls from labor groups for more protections, state regulators are weighing the possibility of changing the rules. Business groups, though, see no need for regulatory changes.

Meanwhile, a new state law imposes penalties for violating one provision of the regulations: failing to provide cool-down recovery periods. Lawyers warn that Senate Bill (S.B.) 435 could trigger a wave of class actions against employers, and they urge businesses to take extra precautions.

Heat-Illness Regulations

In 2005 state authorities adopted emergency rules to protect against heat illness, and the following year, California enacted permanent regulations. The Heat Illness Prevention Standard requires employers to provide access to water, shade and other protections. In 2010 the state added safeguards for times of high heat.

The regulations apply to all outdoor employment sites. Among the provisions of the current rules are:

1) Water
Businesses must provide at least one quart of water per hour for each worker. In addition, companies should encourage workers to drink water frequently.

2) Shade
*A shaded space must be available when the temperature exceeds 85 degrees Fahrenheit.

*The shaded area must accommodate at least 25 percent of the workers on the shift at any time, so they can sit in a normal posture completely in the shade without having to be in physical contact with one another.

*The shaded area must be “as close as practicable” to work areas.

*Employers must permit and encourage workers to take a cool-down rest in the shade for at least five minutes when they feel the need to do so, to protect against overheating.

3) High-Heat Procedures
Employers in five industries must implement high-heat procedures when the temperature reaches at least 95 degrees. These procedures include observing workers for heat-illness symptoms.

4) Planning for Emergencies
Businesses must develop a plan for responding to symptoms of heat illness. This includes procedures for contacting emergency medical services and for transporting employees to receive care. Employers also must designate a person to ensure that proper procedures are followed in an emergency.

5) Training
Employers must train supervisors and workers on required procedures.

The California Division of Occupational Safety and Health (Cal/OSHA) has been criticized for its enforcement of the heat regulations. In 2012, United Farm Workers of America (UFW) sued the agency in Los Angeles Superior Court, alleging systematic failure related to investigating complaints, issuing citations, imposing penalties and other areas. In response, Cal/OSHA said protecting farmworkers is a priority and it vigorously enforces the rules.

Groups Clash over Proposed Changes

In 2013 and 2014, Cal/OSHA held two meetings to determine whether the standard should be revised.

At the July 2013 meeting, labor groups called for changes, such as more specific requirements for water and shade. The groups included the UFW and California Rural Legal Assistance (CRLA). Business groups countered that they hadn’t seen a good rationale for these changes.

Participants in the February 2014 meeting examined draft language that Cal/OSHA developed. The proposed revisions include the following:

*Adding a requirement that water be no farther than 200 feet from any employee at any time, other than when the employee is using a restroom or traveling between the restroom and a work area.

*Requiring that the shaded area accommodate 100 percent of employees on the shift at any time, so they can sit in a normal posture fully in the shade without having to be in physical contact with one another. An exception would be made when an employer rotated break periods between workers. In that situation the amount of shade would simply need to cover all of the workers on break.

*Adding a requirement that the shade be no farther than 400 feet from a work area unless an employer can show that’s not possible.

*Lowering the trigger temperature for high-heat procedures to 85 degrees.

*Requiring a supervisor to implement emergency-response procedures if signs of severe heat illness are detected. A company would be violating the revisions if it sent home an employee who displayed these symptoms without offering the worker onsite first aid or emergency medical care.

Lupe Quintero, the CRLA’s director of community workers, said the draft language significantly improves the regulations, but it leaves some weaknesses unaddressed.

For instance, the CRLA supports making the maximum distance workers must travel for water 50 feet to 100 feet, rather than the 200 feet included in the proposal, Quintero told SHRM Online.

“We want the water to be as close as possible to the workers,” she said.

The CRLA backs many provisions in the draft language, including the maximum 400-foot distance from the shade and lowering the trigger temperature for high-heat procedures to 85 degrees.

Also, the group supports the proposal requiring supervisors to implement emergency procedures if workers exhibit signs of severe heat illness. Currently, Quintero said, workers with heat-illness symptoms are sometimes merely sent home.

The business community has an entirely different perspective.

Marti Fisher, policy advocate for the California Chamber of Commerce, said employers have a high rate of compliance with the regulations. They conduct stringent training on the requirements, she told SHRM Online. The chamber and its coalition of business partners want the discussion to be data-driven, and they haven’t seen any data that justify the revisions, she added.

In a February 2014 letter to Cal/OSHA, the coalition—which includes the Western Agricultural Processors Association (WAPA), Associated General Contractors of California (AGC), several local chambers of commerce and dozens of other groups—said the draft proposal is “entirely unworkable” for employers.

In a July newsletter, WAPA President Roger Isom stated that previous heat-related accidents were due to certain employers’ failure to comply with existing rules—not to inadequate regulations.

Also, in an article posted in August, AGC representative Kate Smiley Crawford urged Cal/OSHA to go after the “bad actors.”

But in Quintero’s view, the regulations need to be tightened. She’s based in the Imperial Valley, where the summertime heat often soars past 100 degrees.

Quintero and other CRLA staff visit California fields that appear to lack adequate water, shade or other protections. They try to speak with supervisors and get the problems remedied, according to Quintero. The CRLA often sees potential violations, and when the group deems it necessary, it asks Cal/OSHA to inspect fields.

In addition, the CRLA provides formal training sessions for farmworkers on heat-illness prevention and informs them that they can make anonymous complaints.

“Workers need to know their rights,” Quintero said. “Many times workers are afraid to complain, to say anything, because of fear of losing their jobs.”

With so much disagreement over the proposal, what comes next? The debate will continue for a while. According to Cal/OSHA spokeswoman Kathleen Hennessy, the discussion process will last the rest of the year.

Enforcement Data

Inspections. In 2006, Cal/OSHA conducted 234 heat inspections statewide, agency data show. Now regulators investigate many more workplaces. In 2012 the agency did 3,854 heat inspections. Last year, Cal/OSHA performed 3,785 of these inspections. (The enforcement data available for 2013 don’t reflect the entire year.)

Violations. The number of inspections with heat violations totaled 158 in 2006. That number reached 1,099 in 2012 and 1,014 last year, according to the most recent figures.

The data reveal that employer compliance soared from 32 percent in 2006 to 75 percent in 2011. For 2012 and 2013, the compliance rate was 73 percent.

New State Law

Meanwhile, employers should address the recently enacted S.B. 435, which imposes penalties for missed cool-down recovery periods. The law relates to the current provision that allows workers to take cool-down rests in the shade for at least five minutes.

Under the measure, which took effect Jan. 1, 2014, businesses must provide one extra hour of pay for each workday they fail to allow a recovery period.

The law potentially could be a “significant source” of wage and hour class actions, alleging that employees were deprived of recovery periods, said Costa Mesa attorney Stephen Berry of Paul Hastings.

Attorneys believe that S.B. 435 will present major challenges for employers. Because state regulations permit employees to determine if they need a cool-down break, lawyers advise businesses to establish clear procedures and keep good records.

Companies need to make sure that supervisors and employees are aware of the provision, advised Christopher Olmsted, a San Diego attorney at Barker Olmsted & Barnier. They also should document their compliance efforts, he added. For instance, a company could note these efforts on a “tailgate meeting” log or take pictures or video of workers during cool-down periods.

Berry told SHRM Online that in their employee-safety policies, companies should include a specific obligation for workers—namely, that if an employee wants a cool-down recovery period but is discouraged or prevented from taking one, the worker must immediately report that to HR.

Berry also recommends a timecard certification, in which employees certify that they’ve received all of the cool-down recovery periods they requested.

Also, Olmsted added, consider hiring a safety consultant to ensure compliance with the heat rules.

Toni Vranjes is a freelance business writer in San Pedro, Calif.


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