OSHA Brings Employers The Heat

As California suffers through a tough fire season and the typical hot, dry Santa Ana winds of autumn, employers in California may face the heat from Cal/OSHA if they don’t protect employees who work outdoors from heat-related illnesses. The law, codified under California Code of Regulations, title 8, section 3395, requires employers to develop, in writing, and implement an effective Heat Illness Prevention Plan (“HIPP”), which includes the following:

  • Procedures for providing sufficient water
  • Procedures for providing access to shade
  • High-heat procedures
  • Emergency response procedures
  • Acclimatization methods and procedures

High Quality H20

In a 1998 movie, The Waterboy’s Bobby Boucher taught us all that “alligators are ornery because they got all them teeth and no toothbrush.” Sorry, that’s the wrong quote. Actually Mr. Boucher, likely the most famous waterboy of all time, taught us that there is nothing better than good old water for staying hydrated and winning football games. The same holds true for preventing heat-related illness in the workplace. It hardly seems necessary that a law is needed to remind everyone exposed to the sun to drink water, but California now has one, so it is worthwhile to examine some of the requirements.

In order to avoid a citation from the “safety police,” and to preclude potential liability for failing to provide required heat-related protections, an employer in the State of California must provide water to employees working outdoors. This water must be “free of charge” and also be “fresh, pure, and suitably cool.” Sounds reasonable, right? Well, it doesn’t end there. The water cannot be “dipped, scooped, or ladled from containers.” Moreover, the dispensers must be capable of being tightly closed, have a faucet or drinking fountain, and must be clearly marked as to their contents. If cups are provided, an employer must make sure that the employees do not share those cups with one another and much provide place to throw the cups away. Also, the drinking fountains and portable water dispensers cannot be located in a “toilet room.” An employer can comply with this new law by providing individual and sealed water bottles to each employee. In all cases, the employer must provide each employee with at least one quart of water per hour of work. Wise investors should start putting their money into Sparklets, Crystal Geyser and their competitors. 

Throwing Shade

The term “throwing shade” has taken on a wholly new meaning in American slang. Although the new law does not address shade as it is used in the Urban Dictionary, the kind of shade afforded by protection from direct sunlight is among the law’s requirements. As an employer in the Golden State, Cal/OSHA requires you to provide actual shade for your employees. As with the water requirements, providing shade on a hot day seems intuitive. Because a law is involved, however, there are specific and particular requirements.

Let’s begin with when shade is required. Under the new law, shade is required when the temperature in the work area exceeds 80 degrees. But, the law also requires that employers provide “timely access to shade upon an employee’s request.” What is actually required? As written, the law mandates that employers provide access to shade upon request by an employee, even if the temperature does not exceed 80 degrees. To avoid violating the law, an employer should always have shade available for its employees, even if the temperature is mild and nowhere close to 80 degrees.

Now that we know when shade is required to be provided (always), we need to know what constitutes “shade.” The term seems to be simple, however, it means something very specific under the law in California. The law states:

"Shade" means blockage of direct sunlight. One indicator that blockage is sufficient is when objects do not cast a shadow in the area of blocked sunlight. Shade is not adequate when heat in the area of shade defeats the purpose of shade, which is to allow the body to cool. For example, a car sitting in the sun does not provide acceptable shade to a person inside it, unless the car is running with air conditioning. Shade may be provided by any natural or artificial means that does not expose employees to unsafe or unhealthy conditions and that does not deter or discourage access or use.

It seems that employers are now required to provide a reasonable means for employees working outdoors to escape direct sunlight and excess heat in a manner sufficient to allow their bodies to cool off when they take breaks.

It’s Getting Hot in Here – High Heat Procedures

Although, the rapper Nelly provided sage advice a few years ago on what to do when it gets hot, Cal/OSHA has different requirements. In California, employers must implement specific “high-heat procedures” when the temperature equals or exceeds 95 degrees. Some of those procedures include:

  • Ensuring effective communication perhaps using electronic means
  • Observing employees by assigning someone to monitor them for symptoms of heat illness or implementing a buddy system
  • Reminding employees to drink the fresh, pure, and suitably cool water you have provided for them
  • Conduct pre-shift meetings to discuss high heat procedures

Ring The Alarm – Emergency Response Procedures

In case of an emergency, you call 911, right? Under the new law, employers must keep in mind that outdoor work can take place in remote areas which have no mobile phone service, and they are required to have a backup plan. When an employee needs to report a health consequence of excessive heat, their employer must ensure that clear and precise directions to the worksite can be provided to emergency responders. If necessary, the employer must be prepared to transport the employee to a place where they can be reached by an emergency medical provider.

Take it Easy – Acclimatization

When the Karate Kid’s Daniel LaRusso moved from New Jersey to Southern California, it took him a while to acclimate himself to his new environment. From the palm trees (“watch out for falling coconuts”) to the people (“strike first, strike hard, no mercy, sir”), there was a lot to get used to. In fact, it wasn’t until he was closely mentored by Mr. Miyagi that he learned how thrive in beautiful Reseda, California.

Like Daniel LaRusso, employees in California are required by law to “acclimatize,” or get used to working in the heat, while being closely monitored. According to Section 3395 of the Code of Regulations, acclimatization peaks in most people within four to fourteen days of regular work in the heat for at least two hours per day. Therefore, California law requires that an employee who has been newly assigned to a high heat area be closely observed by a supervisor or designee for the first 14 days of employment and heat exposure.

Even if employees are not new, the law requires that all employees be closely observed by a supervisor or designee during a heat wave. A “heat wave” means any day in which the predicted high temperature for the day will be at least 80 degrees Fahrenheit, and at least ten degrees Fahrenheit higher than the average high daily temperature during the preceding five days.

Another Consideration for Employers

Compliance with these regulations related to heat exposure and hydration are required of all California employers. Although the required procedures seem to be mainly common sense measures, it is up to employers to comply with the requirements and to make their best efforts to protect employees from injury due to heat exposure and dehydration.

Contact Lewis Brisbois For More Information

This article was intended to be brief summary of some the requirements under Section 3395. If you have been cited by Cal/OSHA or need assistance developing your HIPP, please feel free to contact us for more information. 

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