Legal Obligations to Help Prevent Heat Illness

While other laws obligate employers generally to provide a safe and healthful workplace and to take measures that control risks of heat stress, California now imposes more specific requirements (pdf) intended to reduce the frequency and severity of heat-related illnesses. The state Occupational Safety and Health Standards Board (OSHSB) met on August 12, 2005, to consider an emergency standard (regulation) that the Division of Occupational Safety of Health (Cal/OSHA) proposed to further protect employees in outdoor workplaces. After hearing public comments from a long line of speakers, the OSHSB members voted unanimously to adopt the regulation in the form drafted.

As an emergency standard, the new rule (pdf) took effect on August 22, immediately upon approval of the O ffice of Administrative Law, and it will endure for up to 120 days. This emergency standard requires employers to provide (1) one quart of drinking water per employee per hour, (2) access to a shaded area for employees who need it to prevent or recover from heat illness symptoms, and (3) training on several aspects of heat illness prevention and response. It "applies to all outdoor places of employment at those times when the environmental risk factors for heat illness . . . are present."

The Board acknowledged imperfections in the emergency standard and, through a second unanimous vote, directed Cal/OSHA and OSHSB staff to continue working with an advisory committee toward development of a permanent standard applicable to all workplaces. Board members asked that particular attention be given to aspects of the emergency rule that commenters identified as ambiguous or potentially problemmatic in other ways, such as (1) the definition and required proximity of "shade," (2) means of determining when "environmental risk factors for heat illness" are present, (3) appropriate duration of a "recovery period," (4) distinctions between outdoor and indoor workplaces, and (5) form and depth of employee training.

The first public advisory meeting after adoption of the emergency standard was held in Oakland on September 20, 2005. The next one is tentatively scheduled for November 3. Development and adoption of a permanent standard before December 21 is unlikely, so it appears that the OSHSB will be asked to formally extend the emergency rule beyond that expiration date.

A Cal/OSHA advisory committee had resumed its consideration of how to help prevent heat illness and injury in the workplace on July 15, 2005, after more than three inactive years. The committee, first convened in December 1999, was composed of representatives from businesses, labor unions, academia, and other government agencies. It met again in January 2000, October 2000, October 2001, and February 2002. An initial working draft regulation was discussed at the third meeting, substantially revised for presentation at the fourth, and further revised for the fifth.

Meanwhile, a 2005 bill that prescribes minimum elements for a permanent heat illness prevention standard remains active in the Legislature. This pending legislation, AB 805, is more extensive than the emergency regulation. Most notably, it would require employers to provide paid hourly rest breaks of at least 10 minutes during heat waves -- defined as any day when the maximum temperature exceeds 95 degrees or when it exceeds 90 degrees and the preceding day's maximum is at least 9 degrees less. This bill was passed by the Assembly on June 2 and by the Senate Committee on Labor and Industrial Relations on June 23.

Drafts of the regulation, minutes of advisory committee meetings, and emergency regulation documents are posted below as they become available. Click below to display (html) or download (pdf).

As a matter of longstanding state and federal law, employers have been obligated to help the people they hire avoid harmful effects of heat stress. Specific obligations extend beyond the general OSHA (federal) and Cal-OSHA requirements to provide a safe and healthful workplace.

In California, standards under both the Labor Code (particularly 8 Cal. Code Reg. sec. 3457) and the Food and Agriculture Code mandate both (a) training to increase employee understanding of heat stress risks, and (b) provision of drinking water, "fresh and pure, suitably cool, in sufficient amounts, in locations readily accessible to all employees, and dispensed in single-use cups or fountains." In short, employers are to provide cool water, allow continuous access to it, and explain to workers why they should drink it.

Related standards in Title 8 of the Cal Code of Regulations generally require employers to establish an effective Injury and Illness Prevention Program (sec. 3203), provide potable water for drinking and washing in all places of employment (sec. 3363), and arrange for first aid and effective medical response to injury in remote as well as central locations (sec. 3439).