BILL ANALYSIS �
AB 2346
Page A
Date of Hearing: April 18, 2012
ASSEMBLY COMMITTEE ON LABOR AND EMPLOYMENT
Sandre Swanson, Chair
AB 2346 (Butler) - As Amended: April 9, 2012
SUBJECT : Agricultural employment: heat illness.
SUMMARY : Enacts various provisions of law related to heat
illness and outdoor places of agricultural employment, including
provisions related to civil and criminal liability and
enforcement. Specifically, this bill :
1)Provides that the requirements of the bill apply to all
outdoor places of agricultural employment.
2)Enacts the following requirements with respect to drinking
water:
a) Each employee shall have continuous, ready access, as
close as possible and at a distance of no more than ten
feet from where they are working, to fresh, pure, and
suitably cool potable drinking water, as specified.
b) Each employee shall be provided with a canteen or a cup
for his or her individual use for the temporary storage and
drinking of this water, as specified.
c) Where drinking water is not plumbed or otherwise
continuously supplied, it shall be provided in sufficient
quantity at the beginning of the work shift to provide at
least one quart per employee per hour for drinking for the
entire shift. Water shall be available at all times in
sufficient quantities to provide at least one quart per
employee per hour for the remainder of the work shift.
d) The frequent drinking of water shall be encouraged and
permitted. At no time shall any employer state or imply
that any employee will face any negative consequence for
the frequent drinking of water or for stopping work for
such drinking of water. Each employee shall be compensated
for the time taken to access water. For an employee
working on a piece-rate basis, such compensation shall be
determined based upon their average piece-rate wage during
the pay period in which time was taken to access water.
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3)Enacts the following requirements with respect to shade:
a) The employer shall have and maintain one or more areas
with shade at all times while employees are present that is
either open to the air or provided with ventilation or
cooling, as specified. The shaded area shall be as close
as practicable to the areas where employees are working,
and in no event shall be at a distance of greater than 200
feet away from any employee.
b) The amount of shade provided shall be enough to
accommodate all of the employees on the shift at any time,
so that the employees can all sit fully in the shade
without having to be in physical contact with each other.
An employer shall provide heating or ground covering
sufficient to prevent each of the employees from being in
contact with bare soil and to insulate each of the
employees from the heat of the ground.
c) Each employee shall be encouraged and permitted to take
rest breaks in the shade at any time when they feel the
need to do so to protect themselves from overheating, and
at no time shall any employer state or imply that any
employee will face any negative consequence for taking a
rest break in the shade, as specified.
4)Provides that an employee working on a piece-rate basis shall
be compensated at the employee's average piece-rate wage
during the pay period in which the rest break, rest period, or
cool-down rest period was taken.
5)Requires the employer to implement additional high-heat
procedures when the temperature equals or exceeds 80 degrees,
as specified, including 15 minute breaks every two hours and
the use of a "buddy" system.
6)Requires a supervisor, if he or she observes, or any employee
reports, any signs of heat illness in an employer, to take
immediate action to alleviate the symptoms, as specified.
7)Requires an employer to establish emergency response
procedures, as specified.
8)Establishes specific training requirements for employees and
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supervisors.
9)Requires the employer to comply with written procedure,
certification and posting requirements relating to heat
illness prevention, as specified. These provisions include a
requirement that, prior to the commencement of outdoor work at
any worksite, the employer shall post in a manner readily
visible and legible a sign setting forth the identity of the
farm operator, the identity of the employer, the date, the
number of employees of that employer in each crew at that
worksite on that date, and the location at which the written
procedures for complying with heat illness requirements are
maintained. Civil penalties for violations of these
requirements shall be $500 per day of violation when employees
were working, not to exceed $10,000.
10)Prohibits an employee from being discharged or penalized for
taking specified actions, including drinking water, taking a
break, or other actions reasonably calculated to prevent heat
illness.
11)Establishes civil penalties for violations of specified
requirements as follows:
a) For each day on which the violation existed and the
temperature did not exceed 80 degrees, $500 multiplied by
the number of employees on the work crew at the time of the
violation.
b) For each day on which the violation existed and the
temperature did not exceed 90 degrees, $2,000 multiplied by
the number of employees on the work crew at the time of the
violation.
c) For each day on which the violation existed and the
temperature did not exceed 100 degrees, $5,000 multiplied
by the number of employees on the work crew at the time of
the violation.
d) For each day on which the violation existed and the
temperature exceeded 100 degrees, $10,000 multiplied by the
number of employees on the work crew at the time of the
violation.
e) Where a violation existed and an employee suffered heat
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illness, the penalty shall be not less than $50,000.
f) No penalty shall exceed $200,000.
g) The civil penalty may be reduced by as much as 50
percent if the violation did not exist during a work period
where an employee suffered heat illness, based on specified
considerations.
12)Establishes certain enforcement methods and protocols for the
Division of Occupational Safety and Health (DOSH), as
specified.
13)Authorizes an employee affected by an employer's failure to
comply with these requirements to bring a civil action for
injunctive relief and damages, including civil penalties.
However, 50 percent of any civil penalties recovered by an
employee shall be distributed to DOSH.
14)Provides that an enforcement action or proceeding may be
brought against all agricultural entities involved in the
farming operation, including the farm operator. The acts or
omissions of an agricultural employer shall be imputed to the
farm operator on the real property used in whose farming
operation the agricultural employer was acting at the time of
the alleged violation of this chapter and that farm operator
shall be jointly and severally liable with and to the same
extent as the agricultural employer.
15)Provides that directing an agricultural employee to perform
work without specified safeguards, where the employee dies as
a proximate result of heat-related causes, shall be deemed to
constitute involuntary manslaughter, as specified.
16)Provides that if a corporation or person is convicted of such
a crime, the court shall require the defendant to make
restitution to the immediate surviving family in an amount
between $1,000,000 and $1,500,000. The court may impose
restitution of less than $1,000,000 if necessary to comply
with constitutional requirements.
EXISTING LAW :
1)Requires employers to follow specified guidelines to prevent
heat illness in outdoor places of employment.
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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.
Initial Heat Illness Legislative and Regulatory History
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 (Board) to 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:
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
for employees suffering from heat illness or believing a
preventative recovery period is needed.
4) Develop and implement written procedures for complying
with the heat illness prevention standard.
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The emergency heat regulations took effect on August 22, 2005,
and the permanent regulations became effective July 27, 2006.
Subsequent Additional Regulatory and Legislative Proposals
Despite the 2005 heat illness regulation, heat illness continued
to be an issue of significant concern for workers, particularly
in the agriculture industry. According to a previous report
issued by the Department of Industrial Relations (DIR):
"In 2005, there were 12 deaths out of 25 heat-related
illness cases. In 2006, there were 8 deaths out of 38
heat-related illness cases. In 2007, there was one death
out of 17 heat-related illness cases. In 2008, there were
six confirmed occupational heat-related deaths out of 49
heat-related illness cases. In 2009, there was only one
death out of 41 heat-related illness cases and one
potential heat-related illness case pending final
determination."<1>
Information provided to the Committee by DOSH states that there
have been 4 confirmed heat illness deaths in agriculture in the
years 2008 through 2011.
However, the United Farm Workers of America (UFW) has provided
the committee with the names of 24 farm workers that they claim
have died of heat illness since the regulations were adopted in
2005. One of the most notable tragedies (which garnered
significant media attention) was the 2008 death of 17-year-old
Maria Isabel Vasquez Jimenez.
These events have led some worker advocates to challenge the
heat illness regulation as inadequate or insufficient. In
response, in 2009 the Division of Occupational Safety and Health
(DOSH) proposed a number of emergency standards to revise the
regulatory framework. These proposals were criticized by both
some employer and some worker representatives, albeit for
different reasons. As a result, these proposals were not
approved.
In 2009, DOSH filed a proposal for permanent rulemaking (as
opposed to emergency rulemaking) with the Board. A public
---------------------------
<1> DIR, "Targeted Heat Illness Prevention Campaign: 2010 Report
to the Legislature." (April 2010).
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hearing was held on that proposal in October of 2009. Again,
there were criticisms of that proposal from some employers and
worker advocates. In addition, several Board members criticized
DOSH for not taking the issue to an advisory committee before
going forward with a proposal. As a result, DOSH convened an
advisory committee meeting on November 16, 2009.
DOSH submitted additional changes to the heat illness standard,
which were ultimately adopted in 2010. Among other things, the
changes required shade to be present to accommodate 25 percent
of the employees on the shift at any time when temperatures
exceed 85 degrees. The amendments also established high-heat
procedures for five industries (agriculture, construction,
landscaping, oil and gas extraction, and transportation of
agricultural products, construction material or other heavy
material) when temperature reach 95 degrees. These high-heat
procedures include observing employees, closely supervising new
employees and reminding all workers to drink water.
The current heat illness standard is attached to this analysis
as an exhibit.
Previous Legislation
SB 477 (Florez) of 2010 would have codified and strengthened the
then-existing regulations that provide for the prevention of
heat illness of employees. SB 477 was held in the Assembly
Appropriations Committee.
RECENT LITIGATION :
On July 30, 2009, the UFW and individual farm workers filed suit
to challenge the alleged inadequate safeguards in place to
protect California's farm workers from heat illness. The Court
of Appeal subsequently ruled that the judicial branch did not
have the authority to address some of the issues raised in the
suit, including the deficiency of the existing heat illness
prevention regulation; as to those issues, the court stated that
"�t]he appropriate corrective mechanism is through the political
process or legislative clarification."
According to UFW, the parties continue to engage in discovery
regarding the farm workers' other claims, which challenge the
failure of DOSH to enforce the existing heat illness prevention
regulation. UFW states that DOSH has produced data regarding
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its enforcement actions in 2009, and the trial court has ordered
the agency to produce similar information for the years
2005-2008 and 2010, but DOSH is currently seeking to overturn
that order in the Court of Appeal. The Court of Appeal has
stayed all proceedings in the trial court and conducted a
hearing in February 2012 on the question whether further
discovery should take place.
CRIMINAL PROVISIONS OF THE BILL :
As discussed above, this bill contains provisions related to
involuntary manslaughter and "restitution" to family members
following the heat-related death of an agricultural employee.
Some stakeholders have expressed some concern about the
constitutionality of some of those provisions. This bill is
double-referred to the Assembly Committee on Public Safety,
where those issues will be more appropriately vetted.
ARGUMENTS IN SUPPORT :
This bill is sponsored by the United Farm Workers of America
(UFW). Writing in support of this bill, UFW states the
following:
"At least 16 farm workers have died since the state issued
an emergency regulation related to heat illness in 2005.
Since all of these deaths were preventable, it's clear that
the regulation and its enforcement are ineffective.
In 2009, farm workers filed a lawsuit, Bautista v. State of
California, represented by Public Counsel and Munger,
Tolles & Olson LLP, challenging the adequacy of Cal/OSHA's
prevention efforts. Since the filing of the lawsuit,
Cal/OSHA stated it was increasing its enforcement efforts
through a focus on heat inspections of agricultural
employers. While that lawsuit winds its way through the
courts, farm workers continue to die in the fields without
the improved protections the State has promised them many
times.
From its own 2009 files, Cal/OSHA has failed to issue
citations in more than 120 instances in which its
inspections determined that serious problems exist. In that
same year, Cal/OSHA repeatedly withdrew citations and
reduced fines, even for violations so egregious that the
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agency temporarily shut down the employer's operations.
And, for more than three dozen heat-related complaints in
2009, Cal/OSHA did not conduct any inspections at all.
Last summer, the UFW filed more than 75 serious heat
illness complaints with Cal/OSHA. Cal/OSHA issued heat
citations for only three of those complaints. And, for at
least 2/3 of those complaints - more than 50 - Cal/OSHA did
not even conduct an inspection.
�This bill] assures that agricultural employers provide
water and shade to their employees. It creates a private
right of action so that farm workers can do what the state
fails to do. And, it ensures that growers, who have hired
farm labor contractors, can be held liable for heat-illness
violations. Finally, �this bill] also requires meaningful
penalties for those responsible for heat-related illnesses
and deaths.
�This bill] is limited to protecting farm workers from
preventable heat death and illness. This limited proposal
is minimal protection when compared to the penal code
sections authorizing punishment as a misdemeanor or felony
for every person who fails to provide any animal with
proper food, drink, shelter or protection from the weather.
Finally, �this bill] does not ask taxpayers to cover any
costs. Costs are the responsibility of the grower and farm
labor contractor, and in any event are minimal. In
addition, 50% of civil penalties recovered by the employee
in a civil action, pursuant to �this bill], shall be
distributed to Cal/OSHA for expenses associated with
continued enforcement and transparency.
Unfortunately, heat-related deaths are a reminder that
agriculture is one of the few industries in this state and
country where a person can be worked to death. Without
�this bill], protecting farm workers is simply a good
intention."
ARGUMENTS IN OPPOSITION :
A large coalition of agriculture and business groups writes the
following in opposition to this measure:
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"This legislation is an unjustified and potentially
devastating attack on California's farmers. The author and
sponsors did not reach out to any of our organizations in
crafting the bill because their objective is not to solve a
legitimately defined problem, but rather to demonize
California's farmers.
We cannot speak for other outdoor industries, but we can
state with confidence that California agriculture has
stepped forward to address heat illness in a serious and
sustained way that has increased the protection of our
employees and saved lives. Yet, �this bill] ironically and
unjustifiably singles out agriculture among the industries
with outdoor employees.
The sponsor of this legislation continues to peddle myths
about California's farmers and heat illness prevention. You
will hear purported statistics from the sponsor about the
number of heat illness-attributable fatalities in
agriculture as a primary justification for �this bill]. The
Legislature should instead rely on the official data
reported by the California Labor and Workforce Development
Agency, which is based on official coroners' reports and
not politically motivated conjecture. According to the
Agency, there has been one confirmed heat illness fatality
in agriculture in the last three years. We are the first to
state that one is too many. It is equally important to note
the progress that has been made since our industry
proactively negotiated the original heat illness prevention
regulation in California- the first state to do so - in
2005: That year, there were 12 total outdoor fatalities -
six of which were in agriculture - attributable to heat
illness. Since then, the Agency reports annual fatalities
of eight in 2006 (three in agriculture), one in 2007 (none
in agriculture), six in 2008 (three in agriculture), one in
2009 (none in agriculture), two in 2010 (none in
agriculture) and two in 2011 (one in agriculture).
This is demonstrable and significant progress by any
objective standard. It was achieved in part because the
regulation was well crafted and, as a regulation, could be
readily adjusted or enhanced by the regulatory agency
(Cal/OSHA Standards Board) as experience in the field
informed regulators and stakeholders. Codifying heat
illness requirements will strip the agency of flexibility
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to address changed circumstances and new information that
may come to light in the future. Indeed, the heat illness
regulations were enhanced in 2010 to address concerns that
certain provisions required more specificity and additional
protections were necessary for outdoor employees in five
industries, including agriculture, in high heat conditions.
The State has done its part to strengthen understanding and
compliance in the field. The Labor and Workforce
Development Agency conducted 3,251 heat illness compliance
inspections last year, up from 234 in 2006, and issued 919
citations with aggregate fines of at least $575,000.
These data should be viewed with the knowledge that higher
inspection rates coupled with static or declining citation
and fine data strongly suggest greater compliance by
employers.
More important than this, however, is the agriculture
industry's delivery on its commitment to fully embrace heat
illness prevention and promote strong compliance by
agricultural employers.
Our organizations began intensive outreach and training to
farmers and farm labor contractors in 2006, and we have
increased our efforts every year since. Agricultural
industry groups have conducted hundreds of training
sessions around the state and in webinars, often in
conjunction with Cal/OSHA's consultation experts, reaching
thousands of farmers, crew supervisors, managers and human
resources directors. We developed and distributed tens of
thousands of wallet-size heat illness prevention cards for
our employees in English and Spanish; created training
videos and brochures for tailgate training sessions;
partnered with a major water cooler manufacturer to place
heat illness prevention tips and guidance on water coolers
sold to farmers and farm labor contractors, and much more.
Our organizations do more every year because we supported
this regulation from the outset, and we are committed to
the goal of 100 percent compliance and prevention of all
heat illness incidents among the men and women who work in
our industry.
As noted above, substantial enhancements to the heat
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illness prevention regulation were adopted by the State in
2010 to make certain provisions more specific and to
address high heat situations in five industries including
agriculture. This process was inclusive and considerate of
the experience gained by state regulators, employers and
employee representatives under the existing regulation. The
high heat amendments reflect the benefits of a regulatory
approach in this area, as is the case for the vast majority
of regulations governing occupational safety and health
across all industries. Yet �this bill] would shut down that
experience-informed, stakeholder-inclusive and adaptable
process and impose a dramatically different heat illness
statute on agriculture that is unreasonable, unworkable,
uneconomical and punitive?
?Beyond �this bill's] faulty premise that the regulation is
inadequate and a draconian version must be placed
inflexibly into statute in a form dictated by the sponsor,
the bill establishes extraordinarily high fines for
violations of the bill's complex and unworkable mandates,
as high as $10,000 per employee, up to $200,000.
To make this even more onerous, �this bill] provides the
gift of a new revenue stream to legal aid groups with
"bounty hunter" provisions making farmers jointly liable
for alleged violations by farm labor contractors and
allowing agricultural employees to sue not only their
employers but their employers' customers for alleged
violations. Presumably the rationale for these
lawsuit-friendly provisions is the assertion that State
regulators have failed to fulfill their responsibilities to
protect farm employees through sound implementation and
strong enforcement of the law. As noted above, this is
demonstrably false.
We are dismayed. After all the good-faith work and
investment by California's farmers and farm organizations
to bring about California's pioneering heat illness
prevention rules, after all we have done to promote full
and positive compliance with them, and in spite of the
indisputable progress we have made together with State
regulators in reducing heat illness incidents in
agriculture and saving lives, we are demonized and accused
of an uncaring and willing complicity in the injury and
even death of farm employees. This is wrong, and it should
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not be perpetuated any longer."
REGISTERED SUPPORT / OPPOSITION :
Support
California Employment Lawyers Association
California Labor Federation, AFL-CIO
California National Organization for Women
California Rural Legal Assistance Foundation
Food Empowerment Project
Public Council Law Center
United Farm Workers of America
Opposition
Agricultural Council of California
Alliance of Western Milk Producers
American Pistachio Growers
California Association of Nurseries and Garden Centers
California Bean Shippers Association
California Chamber of Commerce
California Citrus Mutual
California Cotton Ginners Association
California Cotton Growers Association
California Farm Bureau Federation
California Grain and Feed Association
California Grape and Tree Fruit League
California Pear Growers Association
California Seed Association
California State Floral Association
California Tomato Growers Association
California Women for Agriculture
Grower-Shipper Association of Central California
Grower-Shipper Association of Santa Barbara and San Luis Obispo
Counties
Nisei Farmers League
Pacific Egg and Poultry Association
Ventura County Agriculture Association
Western Agricultural Processors Association
Western Growers Association
Western United Dairymen
The Wine Institute
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Analysis Prepared by : Ben Ebbink / L. & E. / (916) 319-2091
EXHIBIT - CURRENT DOSH HEAT ILLNESS STANDARD
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Subchapter 7. General Industry Safety Orders Group 2. Safe
Practices and Personal Protection Article 10. Personal Safety
Devices and Safeguards
(a) Scope and Application.
(1) This standard applies to all outdoor places of employment.
Exception: If an industry is not listed in subsection (a)(2),
employers in that industry are not required to comply with
subsection (e), High-heat procedures.
(2) List of industries subject to all provisions of this
standard, including subsection (e):
(A) Agriculture
(B) Construction
(C) Landscaping
(D) Oil and gas extraction
(E) Transportation or delivery of agricultural products,
construction materials or other heavy materials (e.g. furniture,
lumber, freight, cargo, cabinets, industrial or commercial
materials), except for employment that consists of operating an
air-conditioned vehicle and does not include loading or
unloading.
(3) This section applies to the control of risk of occurrence of
heat illness. This is not intended to exclude the application of
other sections of Title 8, including, but not necessarily
limited to, sections 1512, 1524, 3203, 3363, 3400, 3439, 3457,
6251, 6512, 6969, 6975, 8420 and 8602(e).
Note No. 1: The measures required here may be integrated into
the employer's written Injury and Illness Program required by
section 3203, or maintained in a separate document.
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Note No. 2: This standard is enforceable by the Division of
Occupational Safety and Health pursuant to Labor Code sections
6308 and 6317 and any other statutes conferring enforcement
powers upon the Division. It is a violation of Labor Code
sections 6310, 6311, and 6312 to discharge or discriminate in
any other manner against employees for exercising their rights
under this or any other provision offering occupational safety
and health protection to employees.
(b) Definitions.
"Acclimatization" means temporary adaptation of the body to work
in the heat that occurs gradually when a person is exposed to
it. Acclimatization peaks in most people within four to fourteen
days of regular work for at least two hours per day in the heat.
"Heat Illness" means a serious medical condition resulting from
the body's inability to cope with a particular heat load, and
includes heat cramps, heat exhaustion, heat syncope and heat
stroke.
"Environmental risk factors for heat illness" means working
conditions that create the possibility that heat illness could
occur, 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.
"Landscaping" means providing landscape care and maintenance
services and/or installing trees, shrubs, plants, lawns, or
gardens, or providing these services in conjunction with the
design of landscape plans and/or the construction (i.e.,
installation) of walkways, retaining walls, decks, fences,
ponds, and similar structures, except for employment by an
employer who operates a fixed establishment where the work is to
be performed and where drinking water is plumbed.
"Oil and gas extraction" means operating and/or developing oil
and gas field properties, exploring for crude petroleum or
natural gas, mining or extracting of oil or gas or recovering
liquid hydrocarbons from oil or gas field gases.
"Personal risk factors for heat illness" means factors such as
an individual's age, degree of acclimatization, health, water
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consumption, alcohol consumption, caffeine consumption, and use
of prescription medications that affect the body's water
retention or other physiological responses to heat.
"Shade" means blockage of direct sunlight. One indicator that
blockage is sufficient is when objects do not cast a shadow in
the area of blocked sunlight. Shade is not adequate when heat in
the area of shade defeats the purpose of shade, which is to
allow the body to cool. For example, a car sitting in the sun
does not provide acceptable shade to a person inside it, unless
the car is running with air conditioning. Shade may be provided
by any natural or artificial means that does not expose
employees to unsafe or unhealthy conditions.
"Temperature" means the dry bulb temperature in degrees
Fahrenheit obtainable by using a thermometer to measure the
outdoor temperature in an area where there is no shade. While
the temperature measurement must be taken in an area with full
sunlight, the bulb or sensor of the thermometer should be
shielded while taking the measurement, e.g., with the hand or
some other object, from direct contact by sunlight.
(c) Provision of water. Employees shall have access to potable
drinking water meeting the requirements of Sections 1524, 3363,
and 3457, as applicable. Where drinking water is not plumbed or
otherwise continuously supplied, it shall be provided in
sufficient quantity at the beginning of the work shift to
provide one quart per employee per hour for drinking for the
entire shift. Employers may begin the 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 frequent drinking of
water, as described in subsection (f)(1)(C), shall be
encouraged.
(d) Access to shade.
(1) Shade required to be present when the temperature exceeds 85
degrees Fahrenheit. When the outdoor temperature in the work
area exceeds 85 degrees Fahrenheit, the employer shall have and
maintain one or more areas with shade at all times while
employees are present that are either open to the air or
provided with ventilation or cooling. The amount of shade
present shall be at least enough to accommodate 25% of the
employees on the shift at any time, so that they can sit in a
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normal posture fully in the shade without having to be in
physical contact with each other. The shaded area shall be
located as close as practicable to the areas where employees are
working.
(2) Shade required to be available when the temperature does not
exceed 85 degrees Fahrenheit. When the outdoor temperature in
the work area does not exceed 85 degrees Fahrenheit employers
shall either provide shade as per subsection (d)(1) or provide
timely access to shade upon an employee's request.
(3) Employees shall be allowed and encouraged to take a
cool-down rest in the shade for a period of no less than five
minutes at a time when they feel the need to do so to protect
themselves from overheating. Such access to shade shall be
permitted at all times.
Exceptions to subsection (d):
(1) Where the employer can demonstrate that it is infeasible or
unsafe to have a shade structure, or otherwise to have shade
present on a continuous basis, the employer may utilize
alternative procedures for providing access to shade if the
alternative procedures provide equivalent protection.
(2) Except for employers in the agricultural industry, cooling
measures other than shade (e.g., use of misting machines) may be
provided in lieu of shade if the employer can demonstrate that
these measures are at least as effective as shade in allowing
employees to cool.
(e) High-heat procedures. The employer shall implement high-heat
procedures when the temperature equals or exceeds 95 degrees
Fahrenheit. These procedures shall include the following to the
extent practicable:
(1) Ensuring that effective communication by voice, observation,
or electronic means is maintained so that employees at the work
site can contact a supervisor when necessary. An electronic
device, such as a cell phone or text messaging device, may be
used for this purpose only if reception in the area is reliable.
(2) Observing employees for alertness and signs or symptoms of
heat illness.
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(3) Reminding employees throughout the work shift to drink
plenty of water.
(4) Close supervision of a new employee by a supervisor or
designee for the first 14 days of the employee's employment by
the employer, unless the employee indicates at the time of hire
that he or she has been doing similar outdoor work for at least
10 of the past 30 days for 4 or more hours per day.
(f) Training.
(1) Employee training. Effective training in the following
topics shall be provided to each supervisory and non-supervisory
employee before the employee begins work that should reasonably
be anticipated to result in exposure to the risk of heat
illness:
(A) The environmental and personal risk factors for heat
illness, as well as the added burden of heat load on the body
caused by exertion, clothing, and personal protective equipment.
(B) The employer's procedures for complying with the
requirements of this standard.
(C) The importance of frequent consumption of small quantities
of water, up to 4 cups per hour, when the work environment is
hot and employees are likely to be sweating more than usual in
the performance of their duties.
(D) The importance of acclimatization.
(E) The different types of heat illness and the common signs and
symptoms of heat illness.
(F) The importance to employees of immediately reporting to the
employer, directly or through the employee's supervisor,
symptoms or signs of heat illness in themselves, or in
co-workers.
(G) The employer's procedures for responding to symptoms of
possible heat illness, including how emergency medical services
will be provided should they become necessary.
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(H) The employer's procedures for contacting emergency medical
services, and if necessary, for transporting employees to a
point where they can be reached by an emergency medical service
provider.
(I) The employer's procedures for ensuring that, in the event of
an emergency, clear and precise directions to the work site can
and will be provided as needed to emergency responders. These
procedures shall include designating a person to be available to
ensure that emergency procedures are invoked when appropriate.
(2) Supervisor training. Prior to supervising employees
performing work that should reasonably be anticipated to result
in exposure to the risk of heat illness effective training on
the following topics shall be provided to the supervisor:
(A) The information required to be provided by section (f)(1)
above.
(B) The procedures the supervisor is to follow to implement the
applicable provisions in this section.
(C) The procedures the supervisor is to follow when an employee
exhibits symptoms consistent with possible heat illness,
including emergency response procedures.
(D) How to monitor weather reports and how to respond to hot
weather advisories.
(3) The employer's procedures for complying with each
requirement of this standard required by subsections (f)(1)(B),
(G), (H), and (I) shall be in writing and shall be made
available to employees and to representatives of the Division
upon request.
Note: Authority cited: Section 142.3, Labor Code. Reference:
Section 142.3, Labor Code.