Summer Is Here, and So Is Cal/OSHA’s Indoor Heat Illness Standard (Almost)

Coverage of Section 3396
Section 3396 covers all indoor work areas where the temperature equals or exceeds 82 degrees Fahrenheit when employees are present. Notably, Section 3396 does not apply to teleworking locations of the employee’s choice that are not under the employer’s control.

Core Requirements of Section 3396
The core requirements for indoor work areas where the temperature equals or exceeds 82 degrees Fahrenheit are summarized below. 

For indoor work areas where the temperature or heat index exceeds 87 degrees Fahrenheit, or when the temperature exceeds 82 degrees Fahrenheit and employees wear clothing that restricts heat removal or work in high radiant heat areas, employers must keep accurate temperature and heat index records, as well as identify and evaluate all other environmental risk factors for heat illness. 

Access to Water:

• Employers must provide access to potable drinking water that is fresh, pure, suitably cool, and free of charge to employees.
• The water must be as close as possible to employees’ workspaces and in indoor cool-down areas.

Access to Cool-Down Areas:

• Employers must have at least one cool-down area on site that is always available to accommodate anyone who needs it.
• Employers must encourage their employees to take preventative cool-down breaks and must not order employees back to work if they are experiencing any signs of heat illness.

Emergency Response Procedures:

• Employers must ensure that effective communication methods are available to allow employees to contact their supervisor or emergency personnel when necessary.
• Employers must promptly and appropriately respond to signs and symptoms of possible heat illness.

Acclimatization:

• New employees to workplaces subject to Section 3396 must be closely observed by a supervisor or designee for the first 14 days of employment.
• When no effective controls are in use to mitigate the risk of heat illness, all employees shall be closely observed by a supervisor during a heat wave.

Training:

• All employees: heat illness prevention and treatment, as well as the employer’s procedures for complying with Section 3396.
• Supervisors only: specific supervisor procedures and how to monitor and respond to weather reports indicating excessive heat.

Heat Illness Prevention Plan:

• Employers are required to create effective Heat Illness Prevention Plans. At a minimum, they must contain procedures to comply with the requirements of Section 3396, including access to water and cool-down areas, heat measurements and record-keeping, and emergency response protocols. 

Status of Section 3396
The latest draft of Section 3396 exempted correctional facilities operated by state or local government and clarified that Section 3396 covers vehicles only if fully enclosed and without air conditioning. The fourth 15-day comment period ended on May 30, 2024. Although the earliest that the California Occupational Safety and Health Standards Board (Standards Board) could consider the latest draft for approval is June 20, 2024, the proposed standard is currently not on the Standards Board Public Hearing Agenda for June 20, 2024, or July 18, 2024.

On June 6, 2024, California Congresswoman Norma Torres sent a letter to the U.S. Department of Labor (DOL) and the California Labor and Workforce Development urging DOL and Cal/OSHA to inspect warehouses in the Inland Empire “to ensure safe indoor working conditions for workers.” Torres also asked the agencies to “urgently formalize [ ]” an indoor heat standard this year. That said, we expect Section 3396 to be approved sometime in the next few months. (Federal OSHA is also working on a combined indoor and outdoor heat illness standard.)

Potential Employer Concerns
One potential concern relates to temperature and heat index measurement. Section 3396 will not apply to “incidental heat exposures where an employee is exposed to temperatures at or above 82 degrees Fahrenheit and below 95 degrees Fahrenheit for less than 15 minutes in any 60-minute period.” Employers will likely need to develop procedures for determining when an indoor work area covered by Section 3396 exists.

And as with almost any new regulation, employers may have to budget additional costs to comply with the regulation. For example, employers may have to modify or expand facilities to make room for cool-down areas and to provide convenient access to potable water. The new regulation also prompts the potential purchase of equipment and software for accurate temperature and heat index measurement and recordkeeping, costs for developing training materials, and additional employee time to implement heat illness procedures.

Contact your regular Pillsbury contact or the authors of this alert for recommendations on how to address the above concerns to the extent practicable.