May 18, 2023

Along with the California Chamber of Commerce and a broad coalition of employer organizations, CSAC recently submitted comments on the Division of Industrial Relations, Occupational Safety and Health Standards Board’s (CalOSHA) rulemaking action intended to minimize heat-related illness and injury among employees in indoor places of employment. These regulations are being proposed as a result of SB 1167 (Mendoza) (Chapter 839, Statutes of 2016), which required CalOSHA to propose and adopt a heat illness and injury prevention standard applicable to workers in indoor places of employment. As part of the coalition expressing concern about the proposed regulations as currently drafted, CSAC encouraged CalOSHA to develop reasonable regulations that are not unnecessarily burdensome on employers while minimizing the risk of heat illness to workers in indoor workplaces.

The rulemaking action was originally proposed on March 31, 2023, with a 45-day comment period closing on May 18, 2023. This proposed regulation applies to all indoor places of employment where the temperature equals or exceeds 82 degrees Fahrenheit when employees are present. Under the Administrative Procedure Act, CalOSHA must summarize each comment received during the comment period specifically directed at the proposed regulation and respond explaining how the proposed regulation was amended to accommodate the comment or explain the reason for rejecting the comment. Although no operative date has been set, CalOSHA is expected to consider the regulations for a final vote by the Standards Board late in 2023 or early in 2024. After, the rulemaking package is expected to be forwarded to the Office of Administrative Law for a determination of whether the agency followed the requirements under the Administrative Procedure Act.

The following is a brief sampling of some of the coalition’s concerns with the proposed regulations, as currently drafted.

• Compatibility with Existing Outdoor Heat Illness Regulation. Many employers have outdoor and indoor workplaces with some or all employees transitioning between both. The proposed regulation does not provide guidance on how employees who are covered by either rule will switch between the two regulations.
• Definitions. Applying an indoor definition for vehicles and equipment cabs creates a number of administrative burdens since the temperature will likely drop as soon as air conditioning is functioning. Functionally, this means that employers will need to instruct an employee that they must, upon stepping into a vehicle that feels warm, pull out a thermometer and test the temperature, then record it, before they start the air conditioning and drive to their destination.
• Temporary Trigger. The draft regulation’s requirements are triggered regardless of how briefly the temperature rises above 82 degrees. The lack of a time element creates a number of issues, such as the vehicle example cited above.
• Training. Employers with employees working in both indoor and outdoor areas should be able to provide one training program to comply with the proposed rulemaking action.