Pros and cons of California’s proposed indoor heat rule

By Dave Johnson, Phylmar Newsletter Editor

A 30-year UPS warehouse worker in California suffered heatstroke on the job and was taken by ambulance to a hospital. “You go into these warehouses and there’s zero to no air flow, very stifling heat,” he told a reporter.

A longtime McDonald’s worker in California said workers at her store went on strike to force management to fix a broken air conditioner.

A UPS driver in California said in the past nine years she has talked to numerous workers who experienced heart palpitations or suffered heat stroke while working indoors.

California is venturing to go where federal OSHA hasn’t (yet), with Cal/OSHA releasing a proposed standard for protecting workers from indoor heat in January 2019 after state lawmakers passed a bill mandating a rule. The state’s outdoor heat rule took effect in 2005. California’s Occupational Safety and Health Standards Board held a hearing this past May to begin addressing comments from business and labor. The process promises to be a lengthy one.

The proposal would require employers with indoor workplaces where the temperature is 82⁰ F or more to take preventive steps to require that workers have access to drinking water and cool down areas, are closely observed as they become acclimatized to heat conditions, receive training and timely emergency response, and in conditions of significantly higher heat exposure (equal to or exceeding 87⁰ F) are protected through mandatory assessment and controls. Employers are also required to write a Heat Illness Prevention Plan.

California would follow Minnesota and Oregon as the only states regulating indoor heat exposure. (Oregon’s standard covers both indoor and outdoor workplaces.) California, Colorado and Washington have state standards covering outdoor heat exposure (Washington is proposing to finalize an emergency outdoor standard.) Nevada, Maryland and Virginia are drafting standards to protect workers from exposure to excessive indoor and outdoor heat. More states may initiate standards action in reaction to 18 of the past 19 years being the hottest on record and the recent heat waves that have put many workers at risk.

OSHA is gearing up

Since 1972 NIOSH has recommended that OSHA promulgate a heat exposure standard. Federal OSHA on October 27, 2021, published an Advanced Notice of Proposed Rulemaking (ANPRM) for a potential standard on Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings and solicited public comments on the ANPRM, receiving more than 1,000. Sources say OSHA is getting political pressure to push the standard forward, and it is a top priority with OSHA chief Doug Parker and his team. Still, OSHA standard-setting is historically slow and a final federal rule on preventing heat illnesses could be several years away.

Research published in 2020 by the Centers for Disease Control and Prevention (CDC) estimates that between 2004 and 2018 an average of 702 annual deaths were attributable to heat exposure as the underlying condition, and 287 deaths in which heat was a contributing factor. (This includes employment-related and non-employment related deaths.) The Bureau of Labor Statistics’ Census of Fatal Occupational Injuries has reported an average of 40 annual environmental heat-exposure employment-related deaths between 2011 and 2020.

Advocates & industry reps

Advocates for a California standard, including warehouse workers, delivery drivers and restaurant workers want Cal/OSHA and the standards board to act quickly, with temperatures already ramping up around the state and the year’s first record-breaking heat wave reported to be imminent. Advocates and worker groups also are calling for the temperature thresholds to be lower, with a trigger of 80⁰ F.

Industry representatives are pushing back on several issues in the proposed standard. The food and restaurant industry warns that regulations requiring temperature adjustments for food equipment could violate state health and food safety codes. The California Hospital Association says burn units would require exemptions from the rules.

The Phylmar Regulatory Roundtable™ (PRR™) www.phylmar.com/regulatory-roundtable is comprised of EHS professionals from 37 companies and utilities with more than $1 trillion in annual revenues and employing more than 1.7 million U.S. workers. Like other business groups PRR supports the overall objective of the indoor heat proposal. In a letter to the standards board, Helen Cleary, director of the PRR™ OSH Forum, said the group recommends these revisions:

• Employers may use administrative controls in lieu of engineering controls if an employer demonstrates that administrative controls can minimize the risk of heat illness more effectively than engineering controls. For example, remote areas that utility workers visit once or twice a year should not be required to implement engineering controls such as air conditioning when administrative controls like work-rest cycles can reduce the risk of heat illness.
• There is no need to lower the temperature trigger to 80⁰ F (80⁰ F is the trigger in the Oregon standard), as called for by labor groups. A trigger of 80⁰ F will expand the scope to work environments not subject to intent of the rule, such as offices.
• For short-duration exposures of 15 minutes or less in a one-hour period, the employer should not be required to comply with requirements.
• Employers in compliance with California’s 2005 outdoor heat protection rule should be exempt from the indoor rule.
• Where cool-down areas are infeasible or unsafe, employers should be permitted to use alternative procedures for providing access to cool air, such as air-conditioned vehicles or outdoor areas blocked from direct sunlight.
• If employers are unable to directly monitor employees working alone or in remote locations, they should have effective emergency response procedures to address monitoring and employees experiencing signs and symptoms of heat illness.
• Temperature and heat index evaluations should only be required for fixed workplaces and situations where employees may be exposed to high heat and at risk of heat illness. Employers otherwise should be required to evaluate environmental risk factors that include the duration and activity performed in indoor space in place of the temperature triggers.

“PRR supports and agrees that a standard to prevent heat illness in indoor workplace is needed and appropriate. However, this proposed rule casts an unnecessary net on workplaces that cannot be managed in the same manner as fixed work locations and environments that are known to create significant heat hazards. It also does not appropriately address factors beyond a temperature reading – factors that directly impact a worker’s actual risk of heat illness,” Cleary wrote to the standards board.