Episode 178: Cal/OSHA Heat Regulations and Where Things Stand with SB 553

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, the Labor Law helpline manager and Employment Law Council with the California Chamber of Commerce. Welcome back, listeners. Summer is fast approaching and for us here at the chamber, that means a renewed focus on workplace safety. The warming weather and increased risk of wildfires over the past few years have given rise to rules requiring employers to take special steps when the outdoor temperature gets too high or wildfire smoke has made the air unsafe. Although these summer months do bring this renewed focus, workplace safety is actually a year round compliance issue for us here in California. And currently both Cal OSHA and the state legislature are hard at work attempting to create new requirements for employers. To discuss the newest developments in workplace safety, we welcome back Rob Moutrie, Cal Chambers policy advocate, focusing on workplace safety issues. Thanks for joining me today, Rob.

Thank you, Matthew. Always a pleasure to be here.

Excellent. Well, let's kick it off with the heat rules. So as you know, for years we've had heat illness prevention rules in place for our employees that work outdoors. And I think to put everything in context, we should actually broadly refresh how the current outdoor heat rules work.

Absolutely. So California has had outdoor heat protections going back a number of years that apply across, you know, the industries you would expect, Ag construction and others. And basically what they require you to do is have a plan to deal with heat illness and train your employees on it and take steps to prevent them from reaching a point of heat illness. That includes providing plenty of access to clear and clean and cool water, providing shaded areas in the event of a heat wave, giving them time to acclimatize. And that means watching them as they get used to a higher temperature over the course of days and having emergency response procedures in place. That's loosely speaking what we're looking at with the present outdoor heat regulation, which as you mentioned, Cal OSHA handles the implementation and enforcement of.

Now, we also have some special high heat procedures, right, Rob, when the temperature reaches 95 degrees outdoors.

Yes, we do have some different, generally speaking, a higher level of action there, but it's broadly speaking covering those same concepts, providing for shade, providing water acclimatization and watching those things.

Excellent. Well, I think that was a great refresher to kind of move us into what we're facing this year as Cal OSHA has been hard at work. So let's move to what's known as these proposed indoor heat rules. As we know, CALOSH has been subject to a legislative mandate for the past several years to put something in place and the Pandemic, of course, interrupted that work as we got a number of COVID regulations with that. But Rob, it looks like Calosha is actually making headwinds towards finalization of some indoor heat illness rules. So what's the current status of those rules and what do they look like?

As you said, Matthew Caloche is making progress there. So the indoor heat regulation package just finished their 45 day comment period last month. That's May of 2023. And that means they're in the late stages of rulemaking. Though we don't have an exact timeline. Cal, OSHA experts are now reviewing comments submitted by the chamber and others. They're going to decide if they need to make any last tweaks or if that draft is ready to be put in front of the board for a vote. And generally speaking, we will likely see that vote later this year. That is late 2023, though it could be stretched as far as early 2024. And that's the procedural status. Should we talk about the substance too?

Yeah. So there's something interesting about the difference. Right. We talked about the outdoor heat rules that don't seem to be triggered by any kind of temperature gauge. Right. It doesn't need a minimum temperature outside. You need to have those outdoor heat rules that you have unless you hit the high heat temperature. And something that I notice in the proposed regulations is it starts out with a specific temperature that triggers the applicability of the regulations.

That's right. The indoor heat illness standard has a default trigger. And so generally speaking, it starts at 82 degrees. If your workplace is below 82 degrees, then the regulation won't be in effect. If your workplace rises above 82 degrees, then regulation will go into effect. That trigger of temperature is one of the issues that Cal Chamber has talked about. Because right now, assuming this goes forward without changes, there's no duration on that. And what that means is if I tell you 82 degrees, if your workplace goes over to 82 or 83 degrees for one minute, you have compliance obligations here. It doesn't matter if that's the second before the air conditioner gets into effect, and then it goes back to 75, there is no temporal element. The trigger is right at 82. And in the present draft.

And I think there's something interesting about that and some comments that you made in that maybe you go into a tool shed, right. An enclosed indoor space that's hotter than the rest of the indoor workspace because of its exposure to the weather, but you're only in there to grab a shovel or grab another tool and then you're back out of the 82 degrees into a more climate controlled area. In your mind, as it's written, that would still trigger indoor heat rules.

Absolutely. And that example brings another issue which Cal Chamber and others have raised as a concern here, which is a worker can transition between these two regulations. As you say, if I'm a worker who walks into a shed, I was working outside, let's say in an agricultural setting, I'm outside, it's 80 degrees, I walk into a shed, the shed is 85. While the outdoor heat regulation exists, is applicable at all times. I walk into a shed, now I've changed settings and now I'm under the indoor heat regulation. And so a big issue that agricultural employers in Cal Chamber flagged, hey, can we make these as alike as possible? So to the extent that we have employees transitioning from one regime to the other, that compliance obligation makes sense. And that's something which we've raised with Cal OSHA repeatedly and we're hopeful they'll try to tweak as we head towards the final version.

And so I think that raises an important question, which is what's the difference between the two? We talked about the broad applicability of the rules of outdoor with the water and the shade and acclimatization.

What does the indoor heat rules look like if you get covered by them?

Yeah. So broadly speaking, they do look similar, but there are some important differences. So broadly speaking, you're still going to have to make a heat illness prevention plan. You're still going to have to train your employees on it. You're going to have to make sure that cool water is relatively accessible. You're going to have to create in the outdoor regulation, they had that shaded space. Now one distinction is in the indoor regulation, a shaded space doesn't create quite make sense if your whole building is indoors. Right. So Cal OSHA tried to say, well, you still have to create a cool down space, but it doesn't need to be necessarily an outdoor shaded one. However, that's created some of the biggest issues for those listeners who have, for example, restaurants or smaller restaurants. You know what if your structure doesn't have an indoor room that you can say, oh, this will be the cool down room, this will be the one which we are going to make sure has a lower temperature. We well, if you don't have that extra room, then Cal OSHA has tried to make essentially an exception where you can use a shaded outdoor space. But some of the most concerned parties here have been restaurants where they said, hey, listen, our kitchens have to be at certain temperatures to cook meat safely. Right. That's a matter of other legal obligations we have under the Food and Beverage Code. So here we are, we can't make a kitchen cooler and we don't have extra rooms. So one of the things I expect to see when this passes is you're going to see more restaurants, especially the kind of small mom and pop renting space in a building one, setting up tents just outside of their restaurants to create cool down spaces on hot days.

So that's real interesting rundown of where we are with the indoor heroes. And we'll really look forward to updates from you, Rob, as we go through the second half of this year and possibly into next year. Shifting gears. Another issue that Cal OSHA has worked on to address in the last several years is a workplace standard preventing and addressing incidents of workplace violence across all industries. As we know, in 2017, Cal OSHA created some rulemaking on workplace violence standards specific for hospitals, the healthcare industries, that had unique workplace violence issues arising. However, what we've noticed this year in the legislative session is that a bill, SB553, is, is now attempting to expedite that work with a standard that may not be easily implemented by all employers. And so I think that there would be certain issues with the way that this bill works versus Cal OSHA's work already having been done on this. And I think it'd be cool for you to kind of show what Cal OSHA's been trying to work on and what SB553 does that creates some problems for us.

Yeah. So let me set the stage broadly. So obviously California has had a regulation applying to hospitals and workplace violence occurring at hospitals for a number of years. This was in effect around 2017, if I recall correctly. Since then, Cal OSHA has been working on creating a regulation for workplace violence that will apply to all industries. Everything from schools to a bank to an airline have federal issues, but to a factory just about everywhere else. As you said earlier on indoor heat. This is a process that Cal OSHO is actively pursuing, but kind of took a pause when COVID 19 took over the regulatory space. And everyone was real committed to getting that regulation done and revised as quickly as possible. So with the pandemic over now, we've returned to a world where Cal OSHA has time for this and they've returned to working on their general industry draft. Now, the problem here is that we have some legislation, SB553, which is essentially A draft of what labor wishes Cal OSHA would do on workplace violence. And by wishes, I mean we have essentially taken the hospital regulation standard, standard which Cal OSHA admits is higher than most businesses can do given the resources of hospitals. And 553 takes that hospital standard and applies it to every business in the state, down to one employee under its present language. So that's been a huge concern for us in terms of the feasibility for a smaller business to do what a hospital does. I mean, you know, just throwing some anecdotal numbers, hospitals might have 500 or 1,000 employees. Right? Well, resourced doctors, teams of lawyers, all of that. Now we're going to have 553 applying that same standard down to a restaurant with two people in a food truck, basically. I mean, it's a. And every public entity as well. So you think a small city, a small county, a small parks district, all of those entities are going to face the same standards as hospitals and in fact heightened. And that's a huge concern for us on the chamber side in terms of feasibility for those employers.

And I think it'd be good to highlight kind of why we have these feasibility concerns with them in terms of what the hospital standard is currently in terms of logs, prevention plans, annual reviews, and the kinds of things that are in there and how553 tries to impart that upon every business. What would every business be looking at under 5.53 to have to do?

Yeah. So I mean, first I'll touch on the basics that are in both 553 and Cal OSHA's preferred version, and then I'll get to the tweaks that were made. So Generally speaking, Cal OSHA's draft for general industry shares the core basics with the 553. You have, as you said, a log of workplace violence incidents. You have to have a workplace balance plan. You have to train your employees on how to deal with that plan. You have to provide a couple of measures there. But generally speaking, we're talking about record keeping and training broadly. Now, what 553 does that takes it to the next level is 553 requires more details in your plan, more details in your logic. Those parses aren't the biggest problem, but there's certainly a feasibility issue for smaller employers, annual reviews of that plan, that you have to adjust it on a per location basis. So if you have two or three locations and you're a restaurant, you can't just buy a plan that says, hey, here's the standard plan to implement, got to modify it for every single one. And then the real costs come in. Some provisions that they are very. I'll give some examples. So, for example, in the hospital standard, you have to make individual psychological counseling available to anyone who's affected by workplace violence. And let me step back here. We all think of workplace violence as those tragic shootings we've heard about and things like that. But under this bill and these regulations, workplace violence isn't just that. Workplace violence is in fact a threat of violence. Any physical contact or even waving around something that could be a weapon, you know, just the possession of that act, whether or not I use it. So let's say I'm holding something, a broken bottle, I'm holding, swinging it, holding a knife, just have a gun on my person. Those all become workplace violence incidences, whether or not anyone is actually hurt. Just so the audience is clear here on what we're talking about, so should an event like that occur now, we're talking about providing psychological counseling for everybody who sees or experiences this. And that sounds great. I don't mean to belittle counseling at all, but the issue is where a hospital can afford that, a food truck can't afford that. Right. A small district can't afford that. And candidly, that's why Cal OSHA looked at in their new draft, they looked at the hospital version and they said, hey, that's not feasible across every industry for them to do so. We're going to streamline the provisions and make this work for all industries. And that's what 553 hasn't done, broadly speaking. You also have issues with making changes to the workplace. So 553 requires you to analyze the workplace and specifically calls out looking for things like changing where walls are changing, sight lines, installing cameras, installing alarms, hiring more staff, having staff specifically ready and waiting to be able to respond to a workplace violence event, meaning they have no obligations which would prevent them from dropping everything and running. And to that example, obviously construction employers and others, you may be carrying something that's important. You're manning equipment. You don't have staff sitting around who can drop everything. So that's some of the concerns we have around 553 and its more specific provisions. You know, it's one of those bills which we're mainly worried about and kind of shocked by that. You see in California where even the regulating staff at Cal OSHA don't think this is the right choice. And you know how it is, Matthew. And most of our employers, most of Our listeners will know calosha's regulators rarely agree with us on what's feasible. They're not out here giving us the nicest standards we could think of. Right. So when Cal OSHA thinks it's not feasible for employers to do something, broadly speaking, in California, I think we can agree they're probably right. But that has not stopped this bill from moving forward. It's moved through the Senate. It now heads to the assembly floor. Multiple senators spoke out against it, which is good. But yeah, it is certainly moving forward. And we're going to have to keep watching it and working on it for the rest of the year.

And then just to clarify for the listeners that, you know, while Cal OSHA is working on These standards, if 553 were to pass and be signed by the governor, that's the rules that would take precedent over anything Calosha would do, Is that correct?

That's a good question. In fact, that's a question that a couple of senators and their staff have asked me. Yes, F553 was to pass, it would effectively cut off Cal OSHA's rulemaking process and Cal OSHA would be compelled to use that standard. So this isn't a situation where 553 might pass and then we might have a year OR 2 of 553 before Cal OSHA finishes their regulation. No, it would cut off the process and that would be what's in place. The next logical question would be what's our ability to go back? What's our ability to say if we get it wrong here? How long might it take Cal OSHA to amend it or address it? The answer there is, I don't know, but a long time. California's lead regulation gives us an example. That thing was in place for, I don't know off the top of my head, but I want to say more than 30 years before it was revised. Obviously, science changes in that duration, but I would not expect CALOSHA to go back and touch this again for a decade or more if it's passed in this form.

All right. Well, Rob, it definitely sounds like there's a lot of work ahead on both of these standards. So thank you for taking a moment out of your busy schedule to explain these developments with us today.

My pleasure, Matthew. Always glad to talk.

And thank you listeners for joining this discussion on the workplace. Please comment, share and subscribe to Cal Chamber's podcast by visiting calchamber.com.