By Ilana MoradyPatrick Joyce, and Adam Young

Seyfarth Synopsis: The Cal/OSHA Standards Board was ready to vote on Cal/OSHA’s indoor heat rule at the March 21, 2024 Standards Board meeting, but at the 11th hour, the Board was ordered to cancel its scheduled vote.

Quick Summary

In a surprising development, the Cal/OSHA indoor heat rule, which was expected to be approved at the Standards Board’s March 21, 2024 meeting, has been delayed yet again. The delay was due to the state Department of Finance rejecting part of the Standardized Regulatory Impact Assessment (SRIA) the evening before the scheduled vote, due to concerns over compliance costs at state facilities. The Department of Finance apparently determined that the proposed rule’s fiscal impact on the State’s Department of Corrections and Rehabilitation would be overly burdensome, causing it to withdraw SRIA approval.

Union activists, who were at the meeting expecting to witness approval of the rule, become very upset. Although the cause of the delay appears to be purely due to withdrawal of SRIA approval, accusations about employer collusion began flying. The protesters became so disruptive that Sheriff’s deputies were summoned to remove them.

The Standards Board members, also apparently frustrated by the delay, decided to vote on the rule anyway. In a purely symbolic gesture, they approved the indoor heat regulation. According to a Department of Industrial Regulations spokesperson, a rule cannot become effective without SRIA approval, even if passed by the Board.

What’s Next

The Board and Department of Finance have just over a week to figure out what to do next. The proposed rule is set to expire on March 31, 2024 – 1 year after introduction of the rule on March 31, 2023 – after which rulemaking will have to start again from scratch. If the Board and the Department of Finance cannot work out their differences, labor and worker advocates asked Cal/OSHA to engage in an “emergency” rulemaking to ensure protections are in place prior to the summer heat setting in. The Board and Cal/OSHA have not officially signaled whether they are interested in emergency rulemaking.

Additional Background

For almost 20 years, Cal/OSHA has enforced a heat illness prevention standard that only applies to employees working outdoors, and used its IIPP standard to enforce heat hazards in indoor environments. In 2016, SB 1167 was signed into law, which required Cal/OSHA to submit a proposal to the Standards Board addressing employee protection from indoor heat hazards. Thus began Cal/OSHA’s work on an indoor heat illness prevention standard.

Three years later, on April 22, 2019, Cal/OSHA finally published its first draft standard, which we blogged about in 2019. However, the already slow Cal/OSHA revision process was further slowed by the pandemic and focus on COVID-19 regulations. The pace of regulation again quickened in 2023, when Cal/OSHA introduced an updated draft standard. Since then, a series of modified drafts were proposed.

The proposed rule (at 8 CCR 3396) would require covered employers to make potentially significant changes in their workplaces. Any employer with indoor work areas that are warm will need to evaluate whether the new Section 3396 applies.

Applicability and Summary of Requirements

At all indoor work areas where the temperature equals or exceeds 82 F when employees are present, employers will be required to implement a written Heat Illness Prevention Plan. The written Plan will need to be made available to employees upon request, will need to be in English and the language understood by the majority of employees. Required content of the written Plan is:

  • Procedures to access water;
  • Procedures to access cool-down areas;
  • Procedures to comply with assessment and control measures (when certain conditions exist);
  • Procedures for emergency response;
  • Procedures for acclimatization.

Covered employees will need to be trained on a variety of topics including but not limited to the indoor heat procedures, the different types of heat illness, and the importance of water consumption.

Importantly, the proposed rule contains an “incidental heat exposure” exception where an employee is exposed to temperatures at or above 82 F and below 95 F for less than 15 minutes in any 60 minutes period. This may help some employers avoid coverage under the new standard. The exception does not, however, apply to vehicles without effective and functioning AC, or shipping or intermodal containers during loading, unloading, or related work.

For indoor work areas that meet certain conditions set forth below, additional “assessment and control” measures will be required. Applicability of these measures will be when one or more of the following applies:

  • Temperature equals or exceeds 87 F when employees are present;
  • Heat index equals or exceeds 87 F when employees are present;
  • Employees wear clothes that restrict heat removal and temperature equals or exceeds 82 F; or
  • Employees work in a high radiant heat area and the temperature equals or exceeds 82 F.

For work areas that check one of these boxes, employers would be required to, among other things, measure the temperature and heat index, and record whichever is greater, as well as maintain these measurement records including date, time, and specific location of all measurements. Identification and evaluation of all other environmental risk factors for heat illness will also be required. Alternatively, employers can just assume a work area is subject to one of the triggering conditions and use the Hierarchy of Controls to minimize heat illness risk.

Workplace Solutions

Although the rule has not yet been approved, employers should be prepared to comply. All expectations are that, come summer, regulations will be in place. Whether that’s an emergency indoor heat rule, or a permanent one, remains to be seen. Stay tuned…

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.