DOSH / Heat Illness Prevention – When You Get Full Compliance, Just Raise The Bar.

The Division of Occupational Health and Safety is making a move to once again change the standard on Heat Illness Prevention. I know, this is not a shocker, but in reality it makes no sense. Just as recently as last year a major overhaul (some would call plain stupid) on Heat Related Illness in the workplace was offered up by a California legislator from the Los Angeles area, who should and will remain nameless. This regulation, which was supposedly to “protect field workers” was deemed impossible to implement, and died in legislative session.

Apparently Big Labor and now even DOSH believed some of the provisions in the previously dead legislation were worthy of revisiting. Changes to the standard include, but are not limited to:

  • Shade to be provided at 80 degrees, instead of the current trigger of 85 degrees.
  • Said shade must be large enough to provide for the entire crew (usually 25), instead of the previous 25% of the number of employees in a given crew (6-7 individuals).
  • High Heat Trigger is still 95 degrees, but when 95 degrees is hit, a 10 minute rest period every 2 hours is required until end of shift.
  • In High Heat conditions, the “buddy system” is mandatory, and “regular contact” must be made with employees working by themselves.

In doing this DOSH has changed the definition of “Heat Wave”, which apparently now starts at 80 degrees, which the central valley will hit as early as March 13th (this Friday) of this year. These provisions have also been “fast tracked” by Mary Hart the Executive Officer of the Standards Board for an April 1st effective date, instead of the standard July 1st effective date for changes of this kind.

This is how government agencies subvert, then sabotage, the will of the people and their elected representatives. The worst part of the process is that when DOSH made the proposal to the Cal/OSHA Standards Board, they gave no evidence that this was a necessity based on any kind of actual current facts or figures. It is this professional’s opinion that the problem is under control and heat illnesses and injuries have been on a massive decline since the 2011 year. I could prove this out with my own clients loss runs, but numbers from DOSH themselves would prove this out better. I guarantee you that Heat Illness citations have declined to the point as they were negligible in comparison to nearly all other citations issued in the last year. Unfortunately the evidence to dispute this is held by DOSH and apparently unavailable or does not exist. If it were I offering up the changes, I would remember to bring the evidence to the Standards Board to prove my case. This was not done and now the burden will be placed on employers and Workers Compensation professionals to prove out the non-necessity of these onerous and potentially extremely costly and punitive requirements.

There is only three ways out of the current proposal; one is to email your opinion on this matter to the three administrative law judges that have to approve the new regulations. Email the Honorable Amy Martin at amartin@dir.ca.gov , the Honorable Gretta Windmon at gwindmon@dir.ca.gov , or the Honorable Grace Virrey at gvirrey@dir.ca.gov . This must be done immediately as time is very much of the essence.

The second way to act on this is to file a petition with the Standards Board to amend or repeal the change in the standard back to its original form. It can be won by pointing out the duplication in the new standard to those that already exist in the old standard. They would want evidence presented to prove that case, but if the petitioning party(s) would just refer back to any evidence presented by DOSH when the new standard was passed (which was nothing), I think a point can be made.

The last way is to request a variance from the Standards Board themselves. This is a bit complicated, but doable, as it has been done before. Employers or employer groups can make a case for a variance based on their compliance to the previous standard, and use their loss history and lack of recordable injuries and Cal/Osha citations in this area. This will give you the chance to gain a variance from the Standards Board which will allow your firm, or group of firms, to operate under the previous standard.

In my opinion, this is regulation for regulations sake.

If anyone reading this is interested in the possibility of filing petition or a variance, either individually, or as a group, please contact me and we can discuss what needs to be done.

Guy Teafatiller

guyt@vanbeurden.com

Vice President | Kingsburg