Key Takeaways:
- Cal/OSHA's willful citation for violating California's outdoor heat illness rules foretells Cal/OSHA's intent to strictly enforce its recently enacted indoor heat illness standards.
- The citation highlights the significant penalties that Cal/OSHA will levy on employers who are repeat violators of workplace safety violations.
- In the absence of a federal standard, California outdoor and indoor heat illness rules will continue to govern virtually all workplaces across California.
Cal/OSHA is increasing its focus on enforcement of heat illness violations. On December 12, Cal/OSHA issued its first willful violation alleging Parkwood Landscape Maintenance (Parkwood) failed to comply with California Code of Regulations, Title 8, § 3395. In this citation, Cal/OSHA alleges that Parkwood failed to provide access to water, shaded areas and proper training on preventing heat-related illnesses. Employees also had to purchase their own drinking water. The citation's allegations stem from a June 6 investigation Cal/OSHA launched after receiving a complaint from Parkwood's workers. Critically, the December 12 citation follows a previous citation in 2022, where Cal/OSHA cited Parkwood for failing to establish, implement and maintain an effective, written heat illness prevention plan.
Section 3395 generally states that employers have a duty to control the risk of "heat illness" in "outdoor places of employment," requiring them to create a company-specific heat illness prevention plan. Section 3395 also includes specific rules requiring the prevention plan to (a) provide workers with shaded cool-down areas when temperatures exceed 80 degrees Fahrenheit and (b) communicate with workers on when to take cool-down breaks and consume water when the outdoor temperature is at least 95 degrees Fahrenheit.
In a statement regarding the citation, Cal/OSHA Chief Debra Lee said: "It is unacceptable for any business to blatantly ignore safety protocols, putting their employees at serious risk. This enforcement action underscores our commitment to holding employers accountable and ensuring safe workplaces across California." This first willful citation is notable because it follows closely on the heels of Cal/OSHA effectuating on July 23, 2024, its indoor heat illness prevention regulations, which apply to most workplaces where the indoor temperature reaches 82 degrees Fahrenheit. See California Code of Regulations, Title 8, § 3396.
California employers would be prudent to develop or review their heat illness prevention plans for both outdoor and indoor operations, including self-assessing their work conditions, instructions to employees and training. While there is not yet a federal heat standard — and the Trump administration is unlikely to push forward with last year's proposed rule — it is good practice for employers across the country to review their operations' safe work practices and employee training as they pertain to heat illness prevention. Federal OSHA and all state OSH enforcement agencies can use their general duty regulations to enforce citations if they can prove unsafe worker heat exposures.
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