Employment Law Update

June 28, 2006

Highlight Article

The Summer Heat is Here and Employers must do their part to prevent Heat Illness

By Kyle Kring and Monica Sanchez

With the temperature rising and summer in full swing, employers employing employees in outdoor locations should review their heat illness prevention obligations.  Last summer, in August of 2005, following a series of heat related deaths, the heat illness prevention emergency regulation, 8 CCR § 3395 was passed by the California Occupational Safety and Heath Standards Board.  The CAL OSH Standards Board approved a permanent version of this landmark heat illness standard with a few modifications on June 15, 2006.  The permanent version will be finalized upon being reviewed by California’s Office of Administrative Law, who has 30 days to act on the adoption and set the effective date of the standard.

The emergency standard will remain in place until the permanent proposed standard is adopted.  This article summarizes the emergency standard and upon finalization of the permanent standard, Kring & Chung, LLP will prepare a summary to assist you  with your Compliance Obligations.    

The heat illness prevention regulations apply to all outdoor places of employment at those times when the “environment risk factors” for heat illness are present.  The Division of Occupational Safety and Health (DOSH) in its heat illness prevention emergency regulation enforcement questions and answers series, explains that judging by the time of year, an employer can determine whether the environmental risk factors for heat illness are present.  In general, employers should assume the environmental risk factors for heat illness are likely to be present from the beginning of April through the end of October, in most areas of California.  Of course, the actual weather conditions are what determines the actual risk.

Section 3395 defines environmental risk factors as including “air temperature, relative humidity, radiant heat from the sun and other sources, conductive heat sources such as the ground, air movement, workload severity and duration, protective clothing and personal protective equipment worn by employees.”  Employers might find it helpful to use the heat index, a number calculated by the National Weather Service to rate heat illness risk using temperature (in degrees Fahrenheit) and humidity.  The heat index can be found at  www.crh.noaa.gov/dvn/tools/heatindex.pdf. 

Water and Access to Shade

Employers must provide employees who work outdoors with one quart of drinking water per employee per hour for their entire work shift. 

The regulations allow employers to begin the employee’s shift with smaller quantities of water if they have effective procedures for replenishment during the shift as needed to allow employees to drink one quart or more per hour.  The DOSH explains, in it’s question and answer series, where unlimited drinking water is not immediately available from a plumbed system, and the employer chooses not to provide the full-shift quantity of drinking water at the beginning of the work shift (2 gallons per employee for an 8-hour shift), the standard requires effective procedures for drinking water replenishment to allow an employee to drink one quart or more per hour.  Employers must at all times provide sufficient quantities of water, which is readily accessible, to allow every employee to consume at least one quart of water per hour.  The DOSH, warns that employers will be out of compliance at any time that drinking water is not available to employees, or if their practice is to wait until the water vessel is empty to replenish it.  Furthermore, it is impermissible for an employer to replenish the drinking water supply only after an employee requests it.  The DOSH is concerned that employees will feel pressured to reduce their water consumption in order to conserve the supply if they cannot count on reliable replenishment of water. 

If an employee is suffering from heat illness or believes that a preventive recovery period is needed, the employee must be provided access to an area with shade that is either open to the air or be provided with ventilation or cooling for a period of no less than five minutes.  Access to shade must be permitted at all times.  As defined by the DOSH, in its question and answer series, shade is blockage of direct sunlight.  Shade can be provided by buildings, canopies, lean-tos, or other partial and/or temporary structures that are either ventilated or open to air movement.  Trees can also be used for shade, as long as the cover provided by the trees blocks the direct sunlight.

Employers must keep in mind that according to the DOSH, it is impermissible to use the interiors of cars or other vehicles for shade unless the vehicles are air conditioned or kept from heating up in the sun.  Similarly, metal storage sheds and other out-buildings do not provide protection from sunlight that meets the definition of shade according to the DOSH, unless they provide cooling environment comparable to shade in the open air.  This means that they must be mechanically ventilated or open to air movement.

Training Requirements

Section 3395 requires that all supervisory and non-supervisory employees be trained about

• the environmental and personal risk factors for heat illness;
• the employer’s procedures for identifying, evaluating, and controlling exposures to the environmental and personal risk factors for heat illness;
• the importance of the frequent consumption of water;
• the importance of acclimatization;
• the different types and common signs and symptoms of heat illness;
• the importance of immediately reporting symptoms and signs of heat illness;
• the employer’s procedures for responding to symptoms of possible heat illness;
• procedures for contacting emergency medical services; and
• how to provide clear and precise directions to the work site. 

Supervisory employees must receive the training described above, as well as training about the procedures the supervisor is to follow to implement the applicable provisions in this section and the procedures the supervisor is to follow when an employee exhibits symptoms consistent with possible heat illness, including emergency response procedures.

DOSH warns that it is crucial that employers who use a “one size fits all” product to fulfill their training requirements understand the information that is provided and make sure that they add and subtract what is necessary to make the information relevant to their individual work situation.  According to the DOSH, a common mistake that is made by employers is often after obtaining competent training information from a reputable source, they fail to tailor it to their actual work situation.  In testing for compliance with training requirements, Cal/OSHA personnel will ask a representative number of supervisory and non-supervisory employee’s questions about the required training elements.  The test for compliance with the training requirements of this standard will be whether the training has occurred, whether the required content has been provided, and whether the training has been effective overall in communicating the essentials to employees.  Employers can integrate the measures required in Section 3395 into their Injury and Illness Prevention Program, which is required by 8 CCR § 3203.

What Employers Should Do

The summer heat serves as a reminder that all employers must review their responsibilities as set forth in Section 3395 and ensure that they are complying with the water, shade, and training requirements.  For more information visit the DOSH website at http://www.dir.ca.gov/DOSH/HeatIllnessInfo.html where you can find guidance and resources related to heat illness prevention.

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This article was prepared by Kyle Kring and Monica Sanchez. Mr. Kring is the managing partner of Kring & Chung, LLP. Ms. Sanchez is an associate at Kring & Chung, LLP’s Irvine and San Diego office. You can contact Mr. Kring and Ms. Sanchez at (949) 261-7700.

** The information contained herein is for informational purposes only and should not be relied upon in reaching a conclusion in a particular area. The legal principles discussed herein were accurate at the time this article was authored but are subject to change with time. Applicability of these same legal principles may differ substantially in individual situations. Please consult an attorney before making a decision in a particular area using only the information provided in this article.