Episode 195: Update on California Indoor Heat Regulations

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, Associate General Counsel for Labor and Employment with the California Chamber of Commerce. Hello listeners. Well, the weather is turning and summer is imminent for employers. There are sometimes specific compliance issues that relate to this time of year. For example, hiring minors or interns that are out of school for the summer. New local ordinances sometimes take effect on July 1. And and addressing the impact of warming temperatures on our workforce is something that some employers need to deal with. For years, employers have had to account for specific workplace safety rules related to heat illness prevention for outdoor workers. But soon, employers will also have to contend with a separate set of workplace rules to prevent heat illness in indoor workplaces. In 2016, the California legislature directed Cal OSHA to develop indoor heat illness standards. And it appears that those efforts are near the finish line to discuss the status of these impending new rules. We welcome back Cal Chambers awesome workplace safety policy advocate Rob Moutrie. Thanks for joining me today, Rob.

Pleasure to be here, Matt. Rob, as I call you in my mind, and I'll say I've never heard summer sound so threatening as summer is imminent. Makes me think that something is happening and I should be careful. So glad to be here for it and glad to talk about the indoor heat reg.

Yeah, you know, for us in our industry, everything, it feels eminent these days. So Rob, quick math tells us the legislature directed CALOSHA to work on these heat illness prevention rules, indoor workplaces, eight years ago. Why the delay? And really, where are we now in that rulemaking process today?

Yeah, this is a complicated topic. I mean, the Cal OSHA takes their, certainly takes their time no matter what. But also, you know, crafting an indoor heat regulation that applies to every workplace from a grocery store to a foundry to a packing space. Like, you know, there's just a lot of diversity indoor workplaces in California. So I think that took time and then obviously Covid paused work here for a couple years while Cal OSHA focused there exclusively. But they're back to it now and with a vengeance. It's coming at us. So procedurally now we're in the very late stages. In fact, as listeners may know, Cal OSHA voted to approve the standard previously, but it was then rejected by oal, the Office of Administrative Law because they didn't have some of the necessary documents around fiscal cost. So what's happening now is Cal OSHA is getting some quick revisions in a 15 day change order that they sent out on May 13th and that will be those changes once they go into text will exempt state prisons and thereby address concerns about state costs that led to the last rejection. And then they will make no other substantive changes from the draft we've seen and talked about. I expect the board to vote again in next month, in June sometime. So that's the procedural status then. It'll be going into effect pretty rapidly after that.

Yeah, and I think that's a nice insight into why rulemaking can really take years. Cause oftentimes, you know, we get the legislature around something like a leave of absence, a wage and hour stamp or something. And we always need regulations to kind of help expand upon this. But it's not as easy as just flipping a switch. Right, Rob? A lot of input goes into that.

No, no. I mean, as listeners know, there's so many details in the workplace that people don't think about until they're in it and they're trying to make it work. And that's why things do take that time.

So then, Rob, which employers does this apply to? Because you've named some industries when you started out this show. But really, what's the coverage of this regulation going to look like?

Yeah, any employer, if you think of yourself sitting in a structure, right. You're going to want to be aware of this. And particularly if that structure rises above 82 degrees. So speaking generally, it applies to every indoor space in the state. So, you know, and that's everything, as I said, from kind of a shed that's un air conditioned, though, you're gonna have to focus more on it there to even the office building that, you know, others may work in. The real trigger, the first big threshold, besides being indoors, starts the temperature in the space. So if the temperature hits 82 degrees, the regulation starts applying. Now for some structures, you got air conditioning running all the time. You may never get there. Right. If you're an office building, probably you won't get there during work times, you know, if the air condition is running. But if you are a building, for example, or a business that has a kitchen, right. That kitchen space is certainly going to get there. Right. If you're in a situation where some of the structures in your, in your workplace, some structures may not be air conditioned, you're going to get there. So really what you need is an indoor space. And if you get to or above 82 degrees, then you need to start paying attention to this.

Now we know with the outdoor heat regulation that's been in effect for years, there's a lot of different kinds of things that an employer has to provide. For example, you Know the provision of water once it kicks in, and then there's special rules based on different temperature thresholds. So how are each of these rules triggered and what's really generally in this regulation that employers are going to have to start getting prepared for?

Yeah, broadly speaking, employers who are familiar with the outdoor regulation are going to see a lot of similar features. You know, you have to have provision of cool water nearby, you have to have access to a place where someone can cool down. But we'll get to that in a second. The cool down requirements of the indoor regulation are actually a lot harder to do than the outdoor regulation. You're going to have to record temperatures regularly. You're going to have to have a way to contact emergency response folks. Thankfully for those employers who have mixed workplaces, you know, I think of the restaurant that has a patio outside serving customers and indoor space, most of the obligations of the outdoor and indoor are real similar. And so you're going to see very similar obligations and it won't be too conflicting. I think the most significant change in difference and also probably one of the largest costs is this regulation is going to require indoor employers to generate a cool down space. Now let's imagine that if you are a workplace that had total freedom over your spaces, over your rooms, and you can generate more, you know, build another room if you need it, you're going to need to generate a cool down space that is cooled and also has enough space for all of your workers who might be on a break at the same time. Let's say everyone might take lunch. You have to allow them to go in there and cool down in that space, basically. And this is where it gets difficult, Matt, as often as they want. I mean, the regulation says they must be encouraged to take cool down breaks and you must allow them some time there and someone must monitor them there while they're taking a cool down break. Now, I've spoken to ag employers who deal with this in the ag sense and in the AG and outdoor regulation community, basically you, you know, you can leave someone in a shady spot, you leave some, you have to leave someone to watch them and make sure that they are doing okay at all times. In the indoor space, you're gonna have to manufacture that cool space and again, you're gonna have to have someone watching them and you have to encourage them to take those breaks whenever they want. Though we lobbied Cal OSHA to put some, you know, reasonable limitations on that. Say even three breaks in a shift or three breaks in an hour. Cal OSHA refused to put any discrete limits on that. So it's a really ambiguous requirement there.

Also, in terms of what employers should be aware of, you are going to have more training, though it's similar to outdoor and record keeping obligations to monitor the temperature and record it regularly. So you're going to see a host of obligations there that, particularly for those who haven't been under the outdoor, you're going to want to spend time on.

Now, one thing that I noticed that was really interesting, that's not in the outdoor is a reference to the heat index. And of course, without being a meteorologist or like neither one of us are, heat index generally is some combination of the actual temperature plus whatever the relative humidity is in there. How does that heat index play into this indoor workspace regulation?

Yeah, that's a good point. So, broadly speaking, the heat index. Right. Is a different way to measure temperature because it's intended to measure more closely the effect of the environment on you. So if it's, you know, much more humid, that's going to apply differently. On a practical level, what it means for employers is you're now in a place where you have to monitor with a more advanced tool. Right. You don't monitor the heat index with a simple thermometer. You're going to have to get a special one for that. This is going to be most significant in the environments where you have really heavy humidity in indoor spaces. But it is a second measure of temperature employers are going to have to get familiar with. Another variable employers should be on the lookout for is if you are a workplace that requires, you know, what the regulation calls you as restrictive clothing. So if you're in a place, you're in a foundry, you're in some other space where you're wearing kind of heavier safety equipment that prevents heat from leaving, those workplaces are going to have lower temperature thresholds because Calosh is trying to account for the weight of those clothes, so to speak, some new variables for employers who are not used to them in that. In that area.

Yeah. And I think this is really a lot for employers to prepare for. And of course, when we start to talk about, well, you know, I have to prepare for something, I want to know what my time frame is. So you mentioned that this reg is likely up for a vote in June and you expect that to take place and you expect it to pass. What happens after the vote, if it passes, and when might the employers expect that the regulations would actually take effect?

It's a good question. And let me start by saying to your comment about how you know this is a cost and a burden to do it absolutely is. That's why the state essentially complained about state costs and state prisons are being written out of it. Right. Because it is costly and difficult to do. Sadly, employers are not going to get the same treatment here. In terms of timelines, actually this came up at just the Standards Board meeting earlier this week.

They will pass it in June. I'm, you know, relatively certain the board members have all spoken in favor of it and they already voted for it once. It will then go to the Office of Administrative Law who normally takes, can take weeks to review it. In this case, the board spoke and said they would urge the Office of Administrative Law to act as quickly as possible, which they can do as part of their vote. They can urge speed and I would expect the Office of Administrative Law to act relatively quickly given that they've already seen this regulation once and there's only been one change. So we cannot know exactly when, given that they'll be urged to move as quickly as they can when that will go into effect. On a. To be conservative, I would say, you know, you could see this as early as the first half of July. I don't expect it to be in effect before then. But we are, you know, it's, we can't be precise given that what we know here is that OEL will try to move faster than normal, but there's not a timeline for that. Precisely.

Okay, so then a two parter for you, Rob, while we wait for the regulations to take effect, what steps can employers take now? And then second on top of that is what is really the biggest difficulties or barriers to compliance that you're hearing from some of these impacted industries like warehouses and commercial kitchens.

Yeah. So what employers can start doing, I mean, obviously as an attorney, I say the first thing you want to do is you want to, you, if you have an attorney, if you, if you're a business that's large enough to afford one, you want to start talking to the attorney about how you can prepare for this. They're going to help you to analyze your workplace and to look at these requirements and think about it at a, at a basic level, what can you do? You can start recording the temperature in your workplace to get a sense. If you're not sure if you're above or below that 82 degree threshold throughout the day, start recording the temperature to get used to that. Start looking at, okay, is it possible for me to implement engineering controls to lower temperatures in these spaces? How costly is that? Where can I identify an area to have a cool down area. Something that came up and got discussed a lot during the regulations rulemaking process was, you know, what about those small businesses that don't have complete control of their premises? Right. You're talking about, let's say a restaurant which rents space in a building. You've got space for the kitchen, you've got space for the customers outside, but you don't have space. There's a spare room and back to just be your cool down space. Right. So how do you deal with that? Something that.

We worked hard to negotiate with Cal OSHA to make sure that there is an option of creating an outdoor cool down space. You know, if you can make space over the either in front, in front of the pavement or in an alley out back, you know, but identifying where you're going to put that cool down space for your employees, that's something else I'd start thinking about now. And of course the training pieces and the record keeping. I mean, sadly, employers in California are all too familiar with the burdens of those things. You should prepare for them. But I don't think those are going to be novel burdens compared to some of the other things you're doing.

Yeah, I think, Rob, this sounds a lot like workplace violence prevention that goes into effect on July 1, where you need to spend the time with your workplace. Right. And prepare your unique workspace for what it is that you might uniquely need based on the layout and your resources and what you have.

Yes.

And on top of that.

So absolutely. I want to flag one other piece that for the employers who have, if you have storage sheds or kind of outdoor spaces where you might store something, there is an exception in this regulation around places you go into very briefly, like that storage shed. If you're like me and you grew up in Southern California, you know, there are a lot of storage spaces which get quite hot in the summer, but you step in for a second, you grab something out. Right. So the regulation does have an exception there which employers should take note of. However, if that storage space, when you're stepping into it briefly gets above 95 degrees, then the exception no longer applies. So be aware of that. I don't want folks to fall into that trap of thinking, oh well, it can't possibly require anything in my storage shed. Actually, if you hit 95 degrees, then you need to look at complying with this regulation even in that space, which may be distant from your initial, from your powered structures, so to speak, and maybe much harder to deal with.

Well, Rob, thank you very much for taking some time out of your busy advocacy schedule. I know you're really in the thick of it these days, but thank you helping us walk through, you know, what's coming on this issue and these first steps that we can take to prepare.

My pleasure. And I hope that, well, I hope that no more such unpleasant legislation passes. I'll do my best.

We appreciate it, Rob. And for our listeners, Cal Chamber, of course, will have more resources available to help you comply with this regulation, including a planned webinar that will take place very shortly after it is voted into effect. So stay tuned to our usual spaces for information on that. And thank you very much for joining this discussion on the workplace. Please comment, share and subscribe to Cal Chambers podcast by visiting calchamber.com.