The July 2024 edition of the ALERT covered California’s new “Heat Illness Prevention in Indoor Places of Employment” standard, the first indoor heat regulation in the country. However, other states may soon be joining California, following the federal Occupational Safety and Health Administration’s (“OSHA”) announcement of a proposed rule requiring certain employers to prepare and implement a written heat injury and illness prevention plan for indoor and outdoor workplaces.
1. Background
In April 2022, OSHA issued its National Emphasis Program titled Outdoor and Indoor Heat Related Hazards. In July 2023, OSHA announced a three-year National Emphasis Program to address heat-related workplace hazards in warehouses, processing facilities, distribution centers, and high-risk retail establishments. On July 2, 2024, OSHA announced its proposed rule and published its Notice of Proposed Rulemaking for “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings” on August 30, 2024. The public has until December 30, 2024 to submit comments on the proposed rule.
2. Overview Of The Proposed Rule And HIPP
The proposed rule is broad and covers employers with employees who work indoors or outdoors where the heat index reaches 80°F or higher for more than fifteen minutes in any sixty-minute period. Covered employers must evaluate heat risks, create and implement a written heat injury and illness prevention plan (“HIIPP”), and implement various measures to prevent and minimize the risk of heat illness. The HIIPP must include a comprehensive list detailing the types of work activities covered and include necessary policies and procedures to comply with the proposed rule. It must also include the heat metric used for monitoring heat conditions. Employers must regularly review and update the HIPP. Furthermore, employers are obligated to assess and update the HIIPP’s effectiveness whenever a heat-related illness requiring medical attention results in an absence from work.
The proposed rule also calls for the development of acclimatization plans for new or returning workers unfamiliar with working in high-heat conditions. Employers must provide training on the HIIPP, establish procedures for responding to signs and symptoms of heat-related illnesses, and take immediate measures to assist workers in heat emergencies. Additionally, employers must designate “heat safety coordinators” and provide employees with emergency contact numbers and clear instructions on what to do if someone shows symptoms of a heat-related illness.
3. Monitoring Heat Exposure
The proposed rule requires employers to evaluate and monitor heat exposure levels. For outdoor work areas, employers have the option to use local heat index forecasts or conduct on-site measurements to determine when the initial and high heat triggers are met. For indoor workplaces, employers must identify potential high-heat exposure areas and develop a comprehensive monitoring plan to ensure timely activation of protective measures. Employers must monitor and document their chosen metric–heat index in their HIIPP.
Under the proposed rule, there are two separate triggers for initiating certain protective protocols: an “initial heat trigger” and a “high heat trigger.” The initial heat trigger occurs when the heat index reaches 80°F, while the high heat trigger requires a heat index of 90°F. The proposed rule outlines an employer’s requirements under both heat triggers. Employers may skip the monitoring requirement if they assume that heat exposure exceeds both triggers and act accordingly.
4. Specific Requirements For Initial Heat Trigger
Employers must comply with the following requirements when the initial heat trigger (80°F heat index) occurs:
• Hydration: Employers must provide drinking water to employees as close as possible to their working area. Employers must supply at least one quart of water per employee per hour at no cost to employees. The water must be kept at a reasonably cool temperature. Employers may use water coolers, food-grade jugs, or bottled water.
• Rest Breaks: Employers must allow and encourage employees to take paid rest breaks in designated shaded or air-conditioned break areas. At indoor worksites, the proposed rules require break areas to be air-conditioned or equipped with a combination of increased air movement and, where necessary, dehumidification. At outdoor worksites, employers must ensure conveniently located break areas that are easily accessible and equipped with either shade or enclosed air-conditioned spaces. Shade can be either natural or artificially created and employers should consider the movement of shade throughout the day. In contrast, air-conditioned break areas must be sufficiently spacious and accessible.
• Acclimatization: The proposed rule requires employers to implement an acclimatization protocol for new employees and employees absent for more than 14 days. The proposed rule offers two options to ensure workers adjust safely to heat exposure. Option A requires adherence to high heat trigger measures like 15-minute breaks (discussed below) every two hours, monitoring for heat-related illness symptoms, and providing hazard alerts, regardless of gradual exposure. Option B allows for a gradual introduction to heat, starting with 20 percent exposure on the first day and increasing daily. Exceptions to these requirements exist if employers can demonstrate that an employee has worked in similar or hotter conditions recently and is already acclimated.
• Observation: Employers must train all employees on recognizing the signs and symptoms of heat-related illnesses and emergencies, emphasizing the importance of immediate action in such cases. The proposed rule outlines three methods for employers to monitor employees for signs and symptoms of heat-related illness, including a buddy system, observation by a supervisor or heat safety coordinator, and a communication protocol for employees working alone. Under the buddy system, employees work in pairs within the same area, using visual and verbal cues to monitor each other for heat stress symptoms. Alternatively, a supervisor or heat safety coordinator can observe no more than twenty employees, ensuring they are in close enough proximity to effectively monitor and communicate with the employees under their watch. For lone workers, employers are required to maintain effective two-way communication, checking in at least every two hours to ensure their safety.
• Communication: The proposed rule emphasizes the necessity for effective, two-way communication between employers and employees once the initial heat trigger is reached. Employers must maintain regular, effective communication, which could involve direct voice communication, hand signals, or electronic means such as handheld transceivers or phones, ensuring timely responses to any reported issues. This includes a requirement for a method of communication for workers who operate alone.
• Personal Protective Equipment: Employers are not required to supply cooling personal protective equipment to employees. However, if they choose to do so, they must ensure its cooling properties are consistently maintained during use.
5. Specific Requirements For High Heat Trigger
In addition to complying with the above, employers must comply with the following requirements when the high heat trigger (90°F heat index) occurs:
• Rest Breaks: Once a high heat trigger is met, employers must provide a fifteen-minute paid rest breaks for every two hours of work. These breaks are in addition to other requirements, such as allowing additional rest if needed to prevent overheating and must be taken in designated break areas.
• Hazard Alert: Employers must notify employees about key safety measures against heat hazards, including the necessity of hydration, the right and requirement to take rest breaks, how to respond in heat emergencies, and the location of break areas and water for mobile work sites. A hazard alert must be issued before the work shift begins if high heat conditions are expected from the start, or as soon as such conditions are recognized during the workday. Employers have the flexibility to use various communication methods to issue these alerts, including electronic means, verbal communication, or posting signs, ensuring the information is accessible and understandable to all employees. The proposed rule also requires employers to install warning signs at indoor work areas where ambient temperatures frequently surpass 120°F.
6. Recordkeeping
For indoor work areas where employees might be exposed to heat at or above the initial trigger level, employers must create and maintain written or electronic records of on-site temperature measurements. These records must be kept for a minimum of six months.
7. Training
Employers must provide comprehensive initial training for all employees exposed to heat hazards before they undertake any work that could expose high heat. This training should cover the prevention of heat-related illnesses and injuries, ranging from understanding heat stress hazards, recognizing the signs and symptoms of heat-related illnesses, the importance of hydration and rest breaks, and the proper use of personal protective equipment. Training must be conducted in a language that is understandable by employees.
The proposed rule also requires supplemental training in several instances, such as when employees are assigned new tasks that change their exposure to heat. An annual refresher training is also mandated to ensure that all employees, including supervisors and heat safety coordinators, remain informed about heat hazards, especially before the start of a high heat season.
8. Takeaways
Employers who wish to submit comments on the proposed rule have until December 30, 2024 to do so. Although the proposed rule will not take effect until 2025 at the earliest, employers should proactively consider what heat triggers are associated with their workplace(s) and whether they will need to comply with the new rules. Additionally, certain protocols in particular, like providing water and a cool-down area, may require substantial time and effort to set up. Employers with any questions about compliance should consult with experienced employment law counsel.
To read more articles like this one, subscribe to the ALERT Newsletter today!
About The Author
Robert K. Foster is an Associate with Sheppard, Mullin, Richter & Hampton LLP in the firm’s San Diego (Del Mar) Office. Mr. Foster represents employers in various types of employment litigation, including class action wage and hour claims; PAGA claims; and discrimination, wrongful termination, harassment and retaliation lawsuits. In addition, he also provides strategic advice to employers on a wide range of employment issues, including wage and hour compliance, employee classification, and OSHA matters. He is a frequent contributor to the California Labor and Employment ALERT Newsletter and several other articles and is the co-author of the Employer’s Guide to Workplace Violence Prevention.
Robert litigates actions involving trade secret claims, unfair competition and enforcement of restrictive covenants and non-competes. He also handles various commercial litigation disputes, including breach of contract, breach of fiduciary duty, fraud, tortious interference with contract, unfair competition and shareholder derivative claims.