New rules in California protecting indoor workers from extreme heat could possibly be costly for some small businesses to meet. 

The rules, that could be implemented as early as August, were passed by the California’s Occupational Health and Safety (OSHA) Standards Board earlier this month. The state’s Office of Administrative Law has final review on the rules but is expected to expedite its approval, NBCNews says. 

OSHA passed a set of rules in March but the California Department of Finance raised concerns about the cost it would pose on the state, specifically the cost of bringing the California Department of Corrections and Rehabilitation (CDCR) into compliance, NPR reports. The new rules, passed earlier this month, exclude the CDCR from having to comply. 

The California Chamber of Commerce Policy Advocate Rob Moutrie has objected to the rules saying it could be difficult or impossible for some small businesses to comply, according to NPR. This includes businesses that rent their facilities and don’t have control over their infrastructure. 

NPR also says the California Farm Bureau voiced concerns at a meeting about prohibitive costs needed to install “engineering controls,” such as air conditioning. 

A Nevada TV station recently found that there were more indoor workplace heat complaints filed with Nevada’s Occupational Safety and Health Administration (OSHA) than outdoor during 2023

Several of the complaints mentioned temperatures surpassing triple digits, including a body shop area exposed to temperatures over 116 degrees, according to KTNV report. 

Nevada, like a majority of states, does not have regulations in place related to heat in work environments. However, the article says the state’s OSHA is working on a plan to protect workers in the heat. It doesn’t note if this plan would include indoor work space. A draft of the plan could be ready in the upcoming months.

Washington, California, and Colorado all have laws addressing heat and outdoor working environments, according to OSHA. The Kaiser Family Foundation reports that Oregon and Minnesota are the only states to have regulations on heat in working environments that are indoors and outdoors.

With the new rules, California will become the third state with both outdoor and indoor regulations. 

Fisher Phillips, a national firm focused on labor and employment law, released a guide on what California employers need to know to prepare. 

It says the new rule applies to all indoor work areas where the temperature reaches 82 degrees. The guide says this presents numerous challenges for California employers particularly for warehouses, distribution centers, restaurants, manufacturing and anywhere that indoor temperatures cannot be readily controlled. 

Employers must comply with the rules if the temperature reaches 82 degrees. Additional requirements are needed if the temperature reaches 87 degrees or if the temperature is 82 degrees and employees wear restrictive clothing or work in a high radiant heat area. 

The guide says requirements include the following: 

Develop a written Heat Illness Prevention Plan

The plan should include procedures for accessing water, acclimatization, cool-down areas, measuring the temperature and heat index and emergency response measures. 

It must be a tailored plan to your workplace conditions, the guide says. It said OSHA has emphasized that the standard is not satisfied by restating the safety orders. It must be specific and customized to the employer’s operations. 

Provide fresh, pure and suitably cool drinking water

Free water must be located “as close as practicable to the areas where employees are working and in indoor “cool-down areas.” If there is no running water, an employee must be provided with one quart of drinking water per hour. The drinking of water also must be encouraged during high-heat conditions. 

Cool-Down Rest Periods

Cool-down areas for recovery, meal and rest periods must be maintained at a temperature below 82 degrees, blocked from direct sunlight and shielded from other high radiant heat sources to a feasible extent. Employers must allow and encourage “preventative cool-down rest.”

“During the preventive cool-down rest, the employer must monitor the employees, encourage them to remain in the cool-down area and must not order them back to work until any signs or symptoms of heat illness have abated,” the guide says. 

The guide also notes language in the rule that makes a preventative cool-down rest period the same as a recovery period. Labor code affords employee daily premium pay when they are not taking necessary recovery periods. 

“This change is designed to green light civil wage and hour litigation when an employee is not afforded a recovery period requiring the employer to compensate with premium pay,” the guide says. 

Acclimatization

“Employers must closely observe employees who are newly assigned to high heat conditions for signs of heat stress during their first 14 days of work in these conditions, as well as any employees working during a heat wave where no effective engineering controls are in use,” the guide says. 

Training Requirements 

Non-supervisory and supervisory employees must be trained to know the risks of heat illness in the workplace. This must include environmental and personal risk factors and procedures for complying with the indoor heat illness prevention regulation.

The guide states, “Supervisors must receive additional training that includes requirements on responding to symptoms of heat illness and instructions on monitoring and responding to hot weather advisories.”

Measuring and recording requirements 

“You must measure and record the temperature and heat index when it is first ‘reasonable to suspect’ that it either reaches 87 degrees (or 82 degrees with employees wearing heat restrictive clothing or working in a high radiant heat area),” the guide says. “Those initial steps must be taken where employees are working and when exposures are expected to be greatest.”

Another measurement is required when the temperature is expected to be 10 degrees above the previous measurement. 

Procedures in place must have actively involved employees and their union representatives regarding planning, conducing and recording measurements. Procedures also must identify and evaluate all other environmental risk factors for heat illness. 

Measurement records must include time, date and location of measurements. The records must be maintained for 12 months or until the net measurements are taken. 

“Notably, however, an employer has the option of not taking measurements, and instead, assuming a work area triggers the control measures, as discussed below,” the guide says. “In that event, the employer will need to follow the hierarchy of control measures.” 

Control Measures

“The new rule requires employers to follow a hierarchy of control measures for reducing the risk of heat illness,” the guide says. “This will likely bring significantly increased costs for employers, particularly where engineering controls such as air conditioning systems and other building upgrades are contemplated. These control measures are not required for vehicles with effective and functioning air conditioning.”

The measures require employers to use engineering controls to reduce the temperature and heat index to below 87 degrees or 82 degrees where employees wear clothing that restricts heat remove or work in high radiant heat areas. 

Examples of engineering controls include: 

• Isolation of hot processes
• Isolation of employees from sources of heat
• Air conditioning
• Cool fans and cooling mist fans
• Evaporative coolers (swamp coolers)
• Natural ventilation where the outdoor temperature/heat index is lower than the indoor temperature/heat index
• Local exhaust ventilation
• Shielding from a radiant heat source
• Insulation of hot surfaces

“If engineering controls cannot bring the temperature and heat index below 87 (or 82 degrees when applicable), the next step requires employers to use administrative controls to minimize the risk of heat illness,” the guide says. “But even then, you must use engineering controls to reduce the temperature and heat index to the lowest feasible level.” 

Administrative controls include acclimatizing employees, rotating employees, scheduling work earlier or later in the day, work/rest schedules, reducing work intensity or speed, reducing work hours, changing required work clothing and using relief workers. 

“Cal/OSHA has clarified through FAQs that whether engineering controls are feasible is a ‘fact-sensitive question’ that includes an evaluation of the size, configuration and location of the indoor workspace, the sources of radiant heat, and the nature of the work being done by workers, among other things,” the guide says. 

Employers must use personal-heat protective equipment, such as water-cooled or air-cooled garments to minimize the risk of heat illness, if engineering and administrative controls are insufficient, the guide says 

Multiple retailers sell cooling vests that can be used to keep workers’ body temperatures lower while working in the heat. 

Vortec sells a cooling vest on its website for $265. The vest uses a cooling tube that generates cool air to provide airflow to the worker, the company’s website says. It says all vests can achieve temperature differentials of +/- 45 – 60 degrees.

For more Information

Fisher Phillips will be holding a webinar on the subject on July 9 at 10 a.m. The cost is $49 per person. Register here. 

The Department of Industrial Relations also has published a FAQ on the rules that can be read here.

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