On May 28, California’s Division of Occupational Safety and Health (Cal/OSHA) proposed amendments to CCR, Title 8, Section 3395 (heat illness prevention rule) that would add significant burdens to employers with employees working outdoors. The draft proposal can be found online at CA.gov’s Heat Illness Prevention Programs and Regulations page. Among other things, the changes:

• Imply that a preventative cool down rest break taken by an employee shall be treated as a period of recovery from heat illness, rather than as a preventive measure when an employee feels the need to cool down. [Section (d)(3)]

• Impose new duties to monitor employees for signs of heat illness, duties that may force employers to assess all employees for symptoms of heat illness during all breaks in temperatures over 80 degrees. In addition to the burden, they add a significant new exposure to “be a supervisor, go to jail” liability. [Sections (d)(4), (g)(3) and elsewhere]

• Force employers to draft and implement unspecified methods to acclimatize employees when temperatures rise. [Section (f)(1)(D)]

• Change the as-needed cool down rest into a mandatory recovery period every two hours for agricultural employees under high heat conditions. This unprecedented mingling of wage and hour requirements with health and safety requirements greatly facilitates private attorney actions to enforce heat illness prevention requirements, a precedent that could spread to all industries. [(e)(6)].

California first adopted the heat illness prevention rule in 2005 and to date remains the only state with such a rule. A group of businesses known as the Heat Illness Prevention Coalition has formed to ensure that any changes to the rule are clear, feasible and necessary. Cal/OSHA’s statement of reasons claims that the changes are necessary to clarify the rule. However, Cal/OSHA did not substantiate a need for such far-reaching changes and some of the proposed changes are vague. For example, drinking water “shall be located as close as practicable to the areas where employees are working, and shall be at a distance of not greater than 400 feet walking distance from any employee at any time” with limited exceptions. If the water is located within 400 feet of a moving crew at all times, is it also as close as practicable at any given time?