BILL ANALYSIS
AB 838
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Date of Hearing: April 22, 2009
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
William W. Monning, Chair
AB 838 (Swanson) - As Introduced: February 26, 2009
SUBJECT : Heat illness.
SUMMARY : Requires the Occupational Safety and Health Standards
Board to adopt a standard for controlling the risk of occurrence
of heat illness where employees work indoors by July 1, 2011.
EXISTING LAW :
1)Requires employers to follow specified guidelines to prevent
heat illness in outdoor places of employment.
2)Requires employers to provide safe and healthful working
conditions for all employees by authorizing the enforcement of
effective standards and provides for research, information,
education, training, and enforcement in the field of
occupational safety and health.
3)Requires, with certain exceptions, every employer to
establish, implement and maintain an effective Injury and
Illness Prevention Program.
FISCAL EFFECT : Unknown
COMMENTS : One of the most significant workplace safety issues
addressed by the Legislature and state enforcement agencies in
recent years has involved worker exposure to heat illness.
Following a rash of heat-related deaths in the agricultural
industry in July of 2005, Assembly Bill 805 (Chu) was introduced
to address heat illness by requiring the Occupational Safety and
Health Standards Board t(Board) o adopt an effective
occupational safety and health standard for heat illness
prevention and response for all employees at risk of heat
illness. The bill made it to the Senate floor, but was never
heard. However, as a result of this legislative push for
regulatory action, the Board promulgated an outdoor heat illness
prevention regulation. This regulation requires all employers
with outdoor worksites to take the following steps to prevent
heat illness:
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1) Provide heat illness prevention training to all
employees, including supervisors.
2) Provide enough fresh water so that each employee can
drink at least 1 quart per hour and encourage them to do
so.
3) Provide access to shade for at least 5 minutes of rest
when an employee believes he or she needs a preventative
recovery period. They should not wait until they feel sick
to do so.
4) Develop and implement written procedures for complying
with the heat illness prevention standard.
During the public comment period for the regulation, some
stakeholders argued that the regulation failed to protect many
at-risk workers who work indoors and are exposed to heat-related
illness. The Board's Final Statement of Reasons in support of
the regulation responded to these concerns as follows:
"The Board recognizes that risk of heat illness is not
limited to outdoor work environments, and that in fact some
of the most severe exposures to heat can occur in
artificially heated environments. However, the experience
of the Division in terms of reports of heat-related illness
is that the vast majority of these most serious cases have
occurred where the employee is working out of doors. The
Board notes that in the course of advisory committee
discussions of this proposed standard the Division
committed to reconvening an advisory committee to address
the risk of heat illness in indoor work environments, once
the standard for outdoor workplaces is in place. The Board
notes that even though the proposed standard is limited in
the scope and application of its particular requirements to
outdoor workplaces, employers with indoor workplaces remain
subject to the requirements of existing Title 8 standards,
most notably with respect to Injury and Illness Prevention
Program, First Aid and Emergency Services, and Provision of
Drinking Water. Therefore, the Board does not believe that
further modification to the proposal is necessary as a
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result of this comment<1>."
In addition, the Department of Industrial Relations website
includes a heat illness prevention emergency regulation
"question and answer" section which states the following:
"An outdoor place of employment is best thought of as one
that is not an indoor workplace. A workplace with a roof
and enclosed sides is generally considered an indoor
workplace.
For the purposes of this standard, the important quality of
the majority of indoor workplaces is that they reduce the
risk factors that commonly lead to heat illness?For
example, building codes require that buildings provide
sufficient ventilation, either by natural or mechanical
means. Indoor workplaces usually also block exposure to
direct sunlight.
On the other hand, open areas like agricultural fields,
forests, parks, equipment and storage yards, outdoor
utility installations, tarmacs, and roads, are obvious
examples of outdoor workplaces. Outdoor workplaces also
include construction sites in which no building shell has
been completed and areas of construction sites that are
outside of any building shells that may be present.
Outdoor areas adjacent to buildings, e.g., loading docks,
are also considered outdoor places of employment if an
employee spends a significant amount of time working in
them.
Sheds, packing sheds, and partial or temporary structures
such as tents, lean-tos, and structures with one or more
open sides can be either indoor or outdoor workplaces
depending on the circumstances. In many cases these
structures may actually be hotter than the environment
outside of them because of heating by the sun and
conditions inside like limited air circulation or lack of
insulation. [The Division of Occupational Safety and
Health] considers a structure in this category to be an
-------------------------
<1> Occupational Safety and Health Standards Board, Final
Statement of Reasons, Section 3395 - Heat Illness Prevention,
Pages 6-7.
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outdoor workplace if it does not significantly reduce the
net effect of the environmental risk factors that exist
immediately outside of the structure<2>."
In 2007, legislation was introduced to require the Board to
adopt a standard for indoor heat illness prevention and
prescribed certain requirements for that standard.
Specifically, the bill, Assembly Bill 1045 (Richardson),
requires the Board to adopt an occupational and health standard
by July 1, 2008 for controlling the risk of occurrence of heat
illness where employees work indoors. The bill mandated the
standard to require employers to establish, implement, and
maintain written procedures to recognize the symptoms of, assure
medical treatment for, and prevent the occurrence of, heat
illness, and specified provisions to be included in those
written procedures.
AB 1045 was vetoed by Governor Schwarzenegger, who stated the
following in his veto message on the bill:
"Two years ago, my Administration worked with the
Occupational Safety and Health Standards Board (Board) to
adopt the nation's first outdoor heat regulations. Those
regulations require employers to provide anyone working
outdoors with appropriate training, provide sufficient
quantities of water, and ensure access to shade. When the
Board adopted those regulations it also said it would
commence a review of indoor worksites.
The Board has conducted its review and is now considering
the appropriate means of protecting indoor workers from
excessive heat. This legislation, which proscribes
specific requirements upon any regulation adopted by the
Board, unnecessarily circumvents the Board's established
rulemaking process. Just as the outdoor heat standards were
adopted via the regulatory process and free of legislative
interference, so too should any indoor heat standard be
adopted."
However, in July 2007, the Division of Occupational Safety and
Health (DOSH) announced that it would not be seeking a
regulatory requirement specifically applicable to heat illness
---------------------------
<2> http://www.dir.ca.gov/DOSH/heatIllnessQA.html
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in indoor places of employment. An article in the Cal-OSHA
Reporter stated the following:
"'I'm just not convinced we need it,' [DOSH Chief Len]
Welsh tells Cal-OSHA Reporter. 'Right now, what is most
likely to produce tangible results in protecting employees
is getting information out on what employers need to do.
We're not talking about a whole lot of rocket science
here.'?Welsh observes that the prospect of engaging in more
heat illness rulemaking is 'very controversial' and
possibly not the best use of agency resources. 'When we
adopt regulations that are controversial, we get a lot of
pushback on compliance,' he explains. Employers 'spend a
lot of time fighting the regulation instead of complying.'
But he says that while employer groups are 'fairly
adamantly' opposed to a regulation, they support efforts to
protect employees. 'In some ways, it's an experiment,'
Welsh adds. 'If it doesn't work, we'll have to consider
other methods."
DOSH has prepared a flyer entitled, "Cal/OSHA Heat Illness
Prevention for Indoor Working Environments" that contains the
following information:
"Employers with employees near sources of heat or inside
buildings with limited cooling capabilities must ensure
that their Injury and Illness Prevention Program is
effective and in writing (i.e. work areas with risk of heat
illness have been identified and evaluated, and appropriate
corrective measures and training have been implemented to
protect workers).
Examples include foundries, ovens, dryers, boilers,
warehouses without AC.
Title 8 3203 (Injury and Illness Prevention Program,)
directs employers to address all health or safety hazards
within their worksite including heat illness. Other
regulations that apply include, but are not limited to: T8
3363 Water Supply, T8 3400 Medical Services and First
Aid.
Cal/OSHA has created this handout to raise awareness about
indoor heat illness among employers and workers with a goal
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of reducing the number of heat illnesses. Cal/OSHA studies
reveal that heat illness and even heat fatalities can occur
indoors. The studies also show effective reduction of heat
illness depends on written procedures, access to water,
access to cooler areas, acclimatization and weather
monitoring, emergency response and employee and supervisor
training.
HEAT ILLNESS PREVENTION STEPS INCLUDE:
Written Procedures: Per T8 3203, all preventive steps,
methods and procedures used by the employer to address
indoor heat illnesses must be stated in the company's
Injury and Illness Prevention Program (IIPP). These written
procedures must indicate how to conduct worksite
evaluation, how conditions or practices will be corrected
if necessary, and how information is to be communicated to
workers.
Frequent Drinking of Water: Water is a key preventive
measure against heat illness. Employers need to facilitate
and encourage the frequent drinking of water, and to be on
the lookout for work situations that interfere with access
to water, especially during a heat wave!
Resting in Cooler Areas: Rest breaks provide time for
cooling and the opportunity to drink water. Workers must
have access to rest breaks in cooled or air conditioned
areas and away form the sources of heat, particularly
during a heat wave!
Acclimatization and Weather Monitoring: Acclimatization is
a gradual and temporary adjustment of the body to work in
the heat. People need several days to adjust when working
conditions are significantly hotter than they are used to.
The weather is another significant factor and requires
monitoring by employers and supervisors. Institute
additional water and rest breaks during a heat wave. Indoor
workers face a higher risk of heat illness during periods
of high temperatures, if they are working in a building
that is not temperature controlled.
Being Prepared for Emergencies: Written procedures must
include steps to be followed in an emergency, which will
ensure a rapid effective response, including instructing
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workers on how to reach 911 despite possible language
barriers, how to give instructions to find the worksite and
how to administer first aid while an ambulance is in route.
Employee and Supervisor Training: All workers and
supervisors need to know about the importance of frequent
drinking of water and resting in cooled areas, the signs
and symptoms of heat illness, how to respond and who to
report to when someone feels sick and may need to go to the
hospital. A Cal/OSHA heat illness study revealed that
supervisor training made a significant difference in the
outcome of heat illness cases: victims whose supervisors
were not trained on heat illness prevention were twice as
likely to die as victims whose supervisors had received
training. Hence, the effectiveness of your Heat Illness
Prevention Procedures depends greatly on how you train your
supervisor."
ARGUMENTS IN SUPPORT :
Supporters argue that an effective approach to heat-related
illness is vital to protect the lives of California workers.
The key to preventing heat-related illness is to train employers
and workers on how to identify heat related hazards and to
implement proper controls and work practices. Unfortunately, in
many cases, neither the workers nor their employers have the
awareness of the symptoms that would alert them to report heat
illness cases before it is too late.
They contend that throughout California there are thousands of
workers who have daily exposure to hot indoor work environments.
For example, there are over 100,000 workers who work in food
processing and manufacturing carrying out such tasks as packing
melons, cooking sugar beets, meatpacking, and making dog and cat
food.
These workers toil in workplaces that expose them to
tremendously hot conditions during the workday, especially
during the summer months. Workers in the food processing
industry labor in close proximity to continuously running
equipment that cooks and dries products all day. Many of these
plants are in areas of the state that reach extreme
temperatures, have no air conditioning, and require workers to
constantly put forth high levels of exertion.
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Another example of a hot indoor working environment is
industrial laundries. There are over 400 in California employing
almost 20,000 workers. Indoor temperatures in this industry
often exceed one hundred degrees Fahrenheit. Combined with a
moisture intense environment leading to high humidity, the heat
index in such workplaces can easily be 120-130 degrees. This is
a danger zone where heat exhaustion and heat cramps leading to
heat stroke can easily occur.
Other examples of industries in California with hot indoor
environments include: warehouse workers, steelworkers, pastry
bakers, iron, steel and nonferrous foundry workers, brick firing
and ceramics operations, glass products manufacturing plants,
rubber products manufacturing plants, electrical utilities
(particularly boiler rooms), restaurant kitchens, smelters, and
steam tunnels.
Workers toiling in hot environments must be educated on the
signs and symptoms of heat-related illness. The work process
must also be adapted on very hot days or during heat waves.
Workers and employers must be educated that those workers just
starting out in a hot workplace need a period for
acclimatization so that their bodies can adequately cool them.
All workers must be provided with more frequent and longer rest
breaks, and water and electrolyte-replacing liquids. These are a
few of the issues that should be addressed in any Cal/OSHA
regulations.
Supporters state that the need for a heat standard to protect
outdoor workers was proven almost four years ago with the
preventable deaths of several farmworkers during the brutal 2005
heat wave. This led to an outdoor heat illness regulation that,
among other things, required training of both employers and
employees in the signs and symptoms of heat illness. They argue
that this standard is a good start, but is insufficient, as we
saw in 2008, when a number of farmworkers died of heat stress in
spite of this regulation.
In 2005, Cal/OSHA decided that a regulation for indoor workers
could wait. Unfortunately, supporters contend that over the last
4 years, two union workers have died at indoor worksites in
California. Last year a worker died at a warehouse in Tracy. He
complained of heat illness symptoms and was sent home but sadly,
he died in the warehouse parking lot. Three years ago another
union member died under similar circumstances at a warehouse in
Lancaster. In this instance, the worker made it to the hospital
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where he died. Supporters argue that had an indoor regulation
been in place, these two workers would have been trained along
with their co-workers on how to recognize, prevent, and treat
the symptoms of heat illness and the workers might be alive
today.
With no regulations in place, there is no requirement for
employers to make sure that they or their workers are trained to
identify the symptoms of heat illness and the appropriate
response. Even one preventable death on the job is too many. The
time to create a standard has come. A heat standard to protect
indoor workers will alert medical providers and employers to the
dangers of heat in the workplace and save lives.
ARGUMENTS IN OPPOSITION :
Opponents argue that current law requires all employers to
address workplace hazards, including and especially those
hazards that are unique to each workplace. The premise of an
injury and illness prevention program (IIPP) is that DOSH
recognizes that a one-size-fits-all safety program will not
effectively protect employees across all industries. The IIPP
specifically requires all employers to develop a safety program
to identify and mitigate safety hazards in the workplace and to
train employees about the hazards. Indoor heat exposure is
especially suited to the IIPP to ensure employee safety in these
unique environments. Opponents argue that creating yet another
set of regulations to apply to all employers, even where
excessive heat exposure is not present would impose an
unnecessary burden on employers.
REGISTERED SUPPORT / OPPOSITION :
Support
American Federation of State, County and Municipal Employees
California Applicants' Attorneys Association
California Conference Board of the Amalgamated Transit Union
California Conference of Machinists (co-sponsor)
California Labor Federation, AFL-CIO (co-sponsor)
California Nurses Association/National Nurses Organizing
Committee
California Professional Firefighters
California Teamsters Public Affairs Council
Communication Workers of America, District 9 (co-sponsor)
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Engineers and Scientists of California
International Longshore and Warehouse Union, Northern California
District
Professional and Technical Employees, Local 21
Strategic Committee of Public Employees, LIUNA
UNITE HERE!
United Food and Commercial Workers Union, Western States Council
Opposition
Associated General Contractors
California Chamber of Commerce
California Framing Contractors Association
California Hotel and Lodging Association
California Restaurant Association
California Retailers Association
Motion Picture Association of America
Western Electrical Contractors Association
Western Growers
Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091