As discussed here, on March 22, 2024, the Cal/OSHA Standards Board took an unexpected step by unanimously approving an indoor heat illness prevention regulation. The approval has left California employers in a precarious state of limbo. What happens next?

Over the next 30 working days, the California Office of Administrative Law (OAL) must review the rulemaking record to ensure agency requirements to pass the rule were satisfied. Depending on the outcome of this review it will either approve the rule for filing with the Secretary of State or reject it and send it back to be re-introduced for a revote.

What Does it All Mean?

Despite a likely circuitous route to finalization, preparation is the best course of action.  The best place to begin is to become familiar with the proposed rule. A few key points are outlined below.

For employers with indoor work areas where the temperature equals or exceed 82 degrees Fahrenheit when employees are present, the proposed rule would add the following requirements:

• Cool-Down Areas: The term “cool-down area” in the regulation is used in lieu of the term “shade” to clarify that a cool-down area can be indoors or outdoors. This area must be maintained at a temperature below 82 degrees, blocked from direct sunlight, and shielded from other high radiant heat sources. In addition, employers will be required to allow and encourage employees to take preventative cool-down rests when they feel the need to do so to protect themselves from overheating.
• Provision of Water: This requirement to provide water in indoor cool-down areas is to harmonize with existing drinking water requirements for outdoor hear illness protection and to ensure quick access to drinking water as a means of controlling heat illness. Specific water quantities are provided to ensure quantities sufficient to maximize the effectiveness of drinking water as a measure to prevent heat illness.
• Training: This provision requires that supervisory and nonsupervisory employees be provided certain information before beginning work, including:
  • The role environmental and personal risk factors play in exacerbating the risk of heat illness;
  • A description of the employer’s procedures and employees’ rights;
  • An explanation of the importance of drinking small quantities of water frequently;
  • The importance of acclimatization and close observation;
  • The signs and symptoms of heat illness along with the appropriate first aid and the importance of immediately reporting signs and symptoms;
  • The employer’s procedures for responding to possible heat illness and for contacting emergency services; and
  • The employer’s procedures for ensuring that clear and precise directions are provided to emergency responders.
• Emergency Response Procedures: Emergency response procedures must include maintaining effective communication; responding to signs and symptoms of possible heat illness; contacting emergency medical services; and ensuring that clear and precise directions to the work site are provided to emergency responders.
• Observation During Acclimatization: Requires close observation of all employees where no effective engineering controls are in use to control the effect of outdoor heat on indoor temperature during a heat wave. The regulation identifies the trigger temperature or heat index that requires close observation of an employee who has been newly assigned to a work area, or work involving the use of clothing that restricts heat removal, or a high radiant heat area.
• Heat Illness Prevention Plan (HIPP): Employers must establish, implement, and maintain an effective HIPP that is available in both English and the language understood by the majority of the employees and be available at the worksite to employees and to representatives of Cal/OSHA upon request. At a minimum, the HIPP must include:
  • Procedures for the provision of water and access to cool-down areas;
  • The assessment and control measures of work areas;
  • Emergency response procedures; and
  • Close observation during acclimatization.

Representatives of the U.S Occupational, Safety and Health Association (OSHA) as well as Cal/OSHA and Arizona’s ADOSH are authorized to inspect the workplace whenever they have reason to believe an employee may be in danger due to employment hazards.  Complaints of workplace hazards can manifest in several ways, but employee complaints are the most common. Below are a few key points when it comes to understanding employee-initiated OSHA complaints and how to handle inspection visits.

Employee Initiated Complaints

Employees have the right to submit complaints if they encounter safety or health hazards in the workplace. These complaints often involve ongoing issues that affect employee well-being. Common safety and health hazards include:

• Unsafe Working Conditions: Employees can report hazardous conditions such as faulty equipment, inadequate safety measures, or lack of proper training.
• Health Risks: Complaints related to exposure to harmful substances, poor ventilation, or inadequate personal protective equipment fall under this category.
• Physical Hazards: These include risks like slippery floors, electrical hazards, or unsafe machinery.
• Ergonomic Concerns: Employees can complain about uncomfortable workstations, repetitive strain injuries, or improper lifting techniques.

Employees who believe they have faced retaliation from their employer for raising safety or health concerns can also file complaints with OSHA. Retaliation may take various forms, such as:

• Adverse Employment Action: If an employer takes adverse actions (such as termination, demotion, or reduced hours) against an employee for reporting hazards, it constitutes retaliation.
• Intimidation: Threats, harassment, or creating a hostile work environment due to safety complaints are unacceptable.
• Reduced Benefits or Pay: Retaliatory measures may include reducing benefits, pay, or denying promotions.

Handling Inspection Visits

OSHA inspectors often visit workplaces unannounced, typically during regular hours. Employers are advised to establish inspection procedures due to the unpredictable nature of these types of visits. Here are a few key steps to effectively interact with inspection officers:

1. Upon arrival, instruct all employees to direct the inspector to a designated representative.
2. Inform the inspector to wait for the company’s designated representative, typically the safety coordinator or plant manager. All managers should be notified of the inspector’s presence.
3. If the designated representative is unavailable within 30 to 60 minutes, inform the inspector. Respectfully suggest rescheduling the inspection.
4. If the representative is available, allow the inspector to conduct the opening conference. An employee representative may also attend.
5. During the opening conference, ask the reason for the inspection and attempt to limit its scope.
6. The inspector will initiate the investigation after the opening conference.
7. The designated representative should accompany the inspector throughout the inspection, except when the inspector wishes to speak to employees privately.
8. Employees should always answer inspection-related questions courteously and directly.
9. The inspector may take samples and photographs; with trade secrets subject to confidentiality provisions.
10. Keep a record of the inspection’s scope, interactions, and observations.
11. Request a closing conference after the inspection. Multiple company representatives should attend.
12. Prepare a report of the inspection marked “For Legal Review” and send it only to legal counsel for attorney-client privilege. Keep copies confidential.

What Does It All Mean?

Employers should strive to take employee complaints seriously and address safety and health concerns promptly. At every opportunity encourage open communication, provide proper training, and create a safe work environment to prevent hazards and potential retaliation.

Remember, a proactive approach to safety benefits both employees and the organization.