Date: Apr 01, 2015
Magazine:
WG&S April 2015: WG Strikes Alliance with Colorado Growers

On February 20, 2015, the California Occupational Safety and Health Standards Board adopted an amendment to the state Heat Illness Prevention (HIP) regulation, changing the requirements for potable water, shade, cool-down periods, high-heat procedures, emergency preparedness, acclimatization, training, and HIP plans.  The board is seeking a May 1 effective date from the Office of Administrative Law which has 30 days to review the rulemaking record to determine whether the Board has satisfied the procedural requirements of the Administrative Procedure Act.

Provision of Water

Currently, the heat illness regulation requires employers to provide employees with access to potable drinking water that is clean and maintained through individual dispensers, faucets, or drinking fountains.  The amendment clarifies that the water must be “fresh, pure, suitably cool, and provided to employees free of charge.”  Where drinking water is not plumbed or otherwise continuously supplied, it must be provided in sufficient quantity at the beginning of the work shift to provide one quart per employee per hour for drinking for the entire shift, and the frequent drinking of water must be encouraged.

As far as where the water must be located, the board abandoned a fixed 400 feet requirement to a more flexible standard.  The amendment now provides that water must be located “as close as practicable to the areas where employees are working.”

Access to Shade

The existing regulation requires shade to be present when the temperature exceeds 85°F and the shaded area must be large enough to accommodate at least 25 percent of the employees so that they can sit in a normal posture fully in the shade without having to be in physical contact with each other.  The amendment lowers the shade trigger temperature to 80°F and requires the shaded area to be large enough to accommodate the number of employees on heat recovery or rest periods.  Also, going forward, the amount of shade must be sufficient to accommodate the number of employees who take their meal periods onsite.

The amendment also expands the definition of shade such that it “does not deter or discourage access or use.”

Cool-Down Rests

Currently, employees must be allowed to remain in the shade for at least five minutes whenever they feel the need to do so to avoid overheating.  The amendment will require employers to monitor and ask employees taking cool-down rests whether they are experiencing heat illness symptoms.  Employers are to encourage employees taking cool-down rests to remain in the shade, and they are prohibited from ordering employees back to work until signs or symptoms of heat illness have been abated, but must never provide less than five minutes net cool-down rest time.

High-Heat Procedures

Only employers engaged in agriculture, construction, landscaping, and a few other specified occupations are required to implement special procedures when temperatures hit 95°F.  With the amendment, the high-heat procedures apply to all industries with outdoor workers.  The trigger temperature remains at 95°F.  The amendment expands on the current procedures as follows:

•   Observing employees for alertness and signs or symptoms of heat illness and ensuring effective observation/monitoring by implementing one or more of the following:

     a one supervisor (or designee) to 20 or fewer employee ratio;

     a mandatory buddy system;

     regular communication with a sole employee by radio or cell phone; or

     other effective means of observation

•   designating one or more employees on each worksite as authorized to call for emergency medical services, and allowing other employees to call for emergency services when no designated employee is available.

•   pre-shift meetings before the commencement of work to review the high heat procedures, encourage employees to drink plenty of water, and remind employees of their right to take a cool-down rest when necessary.

The amendment also contains a new preventative cool-down rest period for agricultural employees.  When temperatures reach or exceed 95°F, agricultural employees must be provided a minimum 10 minute net preventative cool-down rest period every two hours.  The preventative cool-down rest period may run concurrently with meal or rest periods required by Industrial Welfare Commission Wage Order 14.  If the timing coincides, no additional preventative cool-down rest period is required during an eight hour workday.  But for shifts longer than eight hours, an additional preventative cool-down rest period will be required at the conclusion of the eighth hour of work, tenth hour, and so on.  The amendment clarifies that “preventative cool-down rest period” has the same meaning as “recovery period” in Labor Code Section 226.7(a).

Emergency Response Procedures

Under the amendment, high-heat emergency response preparedness requirements now must include the following:

•   Ensuring effective communication with employees by voice, observation, cell phone or radio (if reception in the area is reliable);

•   Responding to signs and symptoms of possible heat illness with first aid and how medical services will be provided;

•   Procedures for contacting emergency medical services and transporting stricken workers if necessary, to a place where they can be reached by a first responder, and ensuring clear directions to the work site will be given.

Acclimatization

Supervisors (or their designees) must closely observe and monitor employees during a heat wave.  A heat wave is defined as any day in which the predicted high temperature for the day will be at least 80°F or anytime the temperature is 10 degrees higher than the average high daily temperature in the preceding five days.  New employees assigned to a high heat area must be closely monitored for the first 14 days of employment.

Training

The amendment now requires that in addition to all previous training requirements, employers must train employees in:

•   the employer’s responsibility to provide water, shade, cool-down rests, and access to first aid;

•   the employees’ right to exercise their rights under the HIP standard without retaliation;

•   first aid and emergency response procedures and

•   concepts and methods of acclimatization.

Heat Illness Prevention Plan

The amendment includes new requirements for HIP plans.  The employer must establish, implement, and maintain an effective HIP plan in both English and in any language understood by the majority of the employees.  The plan must be made available to employees at the worksite and to representatives of the division upon request.  The HIP plan may be included as part of the employer’s Illness and Injury Prevention Program but must specifically include procedures for the provision of water and access to shade, high heat procedures, emergency response procedures, and acclimatization methods and procedures, as set forth in the new standard.

Coalition Seeks Clarification

While many provisions of the amendment are crystal clear, other provisions are confusing.  The Division of Occupational Safety and Health (DOSH) has invited stakeholders to identify provisions of the amendment that require clarification.  The Heat Illness Prevention Coalition, of which Western Growers is an active member, has asked DOSH for clarification and guidance regarding several provisions.

For example, what exactly does “not discourage access or use” of shade mean? What is “fresh, pure and suitably cool” water?  While the standard of “fresh, pure and suitably cool” water already exists for the agricultural industry under section 3457 (field sanitation), the definition remains vague. We are hopeful DOSH will provide the necessary clarity and guidance regarding these and other provisions of the newly adopted section 3395.

The Heat is On

In light of the coming changes to the Heat Illness Prevention standard, there are a number of things that Western Growers members should begin doing now to ensure compliance:

•   Review and amend your heat illness and prevention plan and written materials so that they contain all of the new HIP standard requirements including the new requirements for provision of water and shade, preventative cool-down rest periods, high heat procedures, emergency response procedures, acclimatization, and training policies and procedures.  As long as they are effective, your HIP procedures can be integrated into your Injury and Illness Prevention Program.

•   Train supervisors and all outdoor workers on the new HIP plan, procedures, with an emphasis on preventing heat illness.  If you have workers that speak Mixtecan or other indigenous languages, it’s imperative that training is translated into their native language so that it is understood by all employees.  This point about native languages also applies to ensuring effective communication with all employees during heat waves.

•   Understand and be prepared to implement the new requirement for an additional net 10-minute cool-down rest period after eight hours and 10 hours of work when the temperature reaches 95°F, and to align cool-down rest periods with Wage Order 14 meal and rest periods during the first eight hours of work.

•   Remember that last year’s SB 1360 clarified that heat recovery periods, like rest periods, are compensable time.  For piece-rate workers, this means that foremen must individually track and document heat recovery and cool-down periods on an individual basis and ensure those periods are separately paid like rest periods.

•   Don’t wait for the thermometer to top 80°F or for an employee’s request before putting shade up.  As summer approaches, encourage supervisors to get into the habit of erecting shade daily, regardless of the actual temperature that day.  Have and maintain one or more areas of shade at all times when employees are present, and locate it as close as practicable.  Ensure that you have enough shade structures to accommodate at least 25 percent of the employees and all employees taking a meal period onsite.  Consider staggering meal periods so that you don’t have to provide shade to all employees at the same time.

•   Ensure that you maintain, at all times, sufficient quantities of cool, potable drinking water (i.e. enough to provide at least one quart per employee, per hour for the entire shift.)  Implement and maintain effective replenishment procedures when beginning the shift with smaller quantities.  Locate water containers as close as practicable given the working conditions and layout of the worksite.  Keep it readily accessible by moving the water with the workers.  Encourage the frequent drinking of water.

For more information about the changes to section 3395, check out the OSHSB’s web page at http://www.dir.ca.gov/oshsb/oshsb.html.

WG Staff Contact

Jason Resnick
Sr. Vice President & General Counsel
949-885-2253

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