Heat Illness Prevention in Indoor Workplaces

Cal/OSHA is in the process of developing regulations to prevent heat illness in indoor workplaces.

The California Division of Occupational Safety and Health (Cal/OSHA) is in the process of developing regulations to prevent heat illness in indoor workplaces.

A California Chamber of Commerce-led coalition has submitted written comments and oral testimony at each step of the process encouraging Cal/OSHA to establish rational policies that are not unnecessarily burdensome on employers while minimizing the risk of heat illness to workers in indoor workplaces.

Comments on the latest draft of the standard, released on January 29, are due on February 22.

The background information below is excerpted from the CalChamber 2019 Business Issues and Legislative Guide article written by CalChamber Policy Advocate Marti Fisher before her retirement at the beginning of this year.

• In 2016 the Legislature passed SB 1167 (Mendoza; D-Artesia), directing Cal/OSHA to develop a regulation to prevent heat illness amongst indoor workers and submit it to the Cal/OSHA Standards Board by January 1, 2019. Formal rulemaking was to follow.

• In 2017 and 2018, Cal/OSHA held three stakeholder work group meetings, known as Advisory Committees, to review draft rules. Subsequently, three additional drafts were released to which stakeholders submitted written comments.

• A draft rule was circulated by Cal/OSHA to stakeholders October 24, 2018, with written comments submitted by the CalChamber-led coalition on November 20, 2018.

• All drafts of the rule and public written comments are available at dir.ca.gov/dosh/doshreg/Heat-illness-prevention-indoors/.

Impact on Business

Cal/OSHA intends to classify all workplaces as either indoor or outdoor. The new regulation will apply to all indoor workplaces across all industries. However, some indoor workplaces will not be subject to the requirements if the temperatures are below the threshold, which as of the October 24, 2018, draft is in most cases 82 degrees.

The rule generally follows the framework adopted for outdoor heat illness prevention Section 3395 (water, rest, shade, training, written plan), to minimize the burden of compliance on employers, particularly those with both indoor and outdoor workplaces.

CalChamber’s primary concerns with the proposed rule are as follows:

• Many employers have both outdoor and indoor workplaces, with some or all employees transitioning between both. Therefore, indoor and outdoor rules must be harmonized so that employers with both indoor and outdoor workplaces can comply by integrating the plans into one heat illness prevention plan.

• The most recent proposal defines “indoor” essentially as a space under a ceiling and enclosed along its perimeter. This definition does not contemplate structures with chain link fences, guardrails or partial walls along perimeters. A clear and specific definition is required so that employers can identify a workplace as indoor or outdoor.

• The manner in which vehicles and equipment will be handled (for example, forklifts operated inside a warehouse, or outside, and tractors with fully or partially enclosed cabs) could present significant challenges for employers. Pick-up and delivery operations where employees are in and out of vehicles that may not be air conditioned and may or may not be fully enclosed also require clear definition and direction for employers to properly apply the rules.

Today, employers subject to the outdoor heat rule include their equipment operators and vehicle drivers in their outdoor program. Cal/OSHA has not yet proposed a workable policy.

• Engineering controls for heat exposure in indoor workplaces must be not only feasible, but reasonable for employers to implement while protecting employees.

• Record retention should conform to general record retention requirements of the Injury and Illness Prevention Program (IIPP)—one year. In Cal/OSHA’s October 24, 2018, proposal, records of indoor temperature assessments would have to be retained for more than 30 years.

Anticipated Action in 2019

The statutory deadline for Cal/OSHA to submit a proposal to the Cal/OSHA Standards Board was January 1, 2019. Subsequent to the board’s receiving the proposal, many steps will be taken before formal rulemaking, which is anticipated to begin sometime in 2019.

As it has throughout the pre-rulemaking process, the CalChamber-led coalition will continue to provide thoughtful, rational comments and regulatory language to Cal/OSHA to ensure clarity that will lead to effective compliance by employers while improving employee safety.

Click here to read CALChambers position......

Article written by:  Jennifer Barrera / HRwatchdog/Presented by: Cal Chamber

Article posted on: Feb 20,2019

Article spotted by: Louise Burden

Emergency Regulations for Workplace Injuries Reporting Approved

Beginning 2019, the Form 300A summary data from the previous

 year will need to be submitted every March 2.

The Office of Administrative Law (OAL) has approved Cal/OSHA’s emergency regulations, which will require certain California employers to submit their injury and illness log (Form 300A) information to a federal OSHA database annually. This is in compliance with federal OSHA requirements.

While Cal/OSHA opted to pursue emergency regulations this month, federal OSHA announced this past April that employers in states with their own plans would be required to comply. Cal/OSHA then declared an emergency for rulemaking purposes.

The emergency rulemaking process eliminates all public discussion of policy and allows comments during the public five-day comment period solely on the rule’s compliance with the  Administrative Procedures Act’s requirements. This includes necessity, clarity and consistency with state and federal laws.

The first compliance date to submit the data from 2017 is December 31, 2018. Beginning in 2019, summary data will be due by March 2 of the year after the calendar year covered by the forms. For example, the data from 2018 will be due March 2, 2019.

The following employers must submit online Form 300A covering calendar year 2017 by December 31, 2018:

• All employers with 250 or more employees, unless specifically exempted by section 14300.2 of Title 8 of the California Code of Regulations.
• Employers with 20 to 249 employees in the specific industries listed in Appendix H of the emergency regulations.

Instructions to submit the summaries online each year are on federal OSHA’s Injury Tracking Application webpage.

Cal/OSHA will proceed with the formal rule making process to make the emergency regulations permanent by submitting the required documentation to OAL. The rule making process will also include a public comment period and public hearing. The dates for the comment period and public hearing will be posted on Cal/OSHA’s proposed regulation page.

Click here to read the full article.......

Article written by:  Marti Fisher/Policy Advocate

Article published on:  Nov 9, 2018- HRWatchdog Presented by CalChamber

Article spotted by: Louise Burden

About Face: OSHA Clarifies that Safety-Incentive Programs and Post-Incident Drug/Alcohol Testing ARE Permissible

On October 11, 2018, in an about-face on prior guidance, the Occupational Safety and Health Administration (OSHA) issued a significant Standard Interpretation Memorandum regarding safety-incentive programs and post-incident drug/alcohol testing.  In the new Memorandum, OSHA shifts course and clarifies that such programs and testing are permitted if properly drafted and enforced.

Background

In May 2016, OSHA published a new Electronic Injury and Illness Reporting Rule (“the 2016 Rule”).  In addition to creating an electronic injury reporting standard, the guidance accompanying the 2016 Rule made several significant changes to OSHA’s anti-retaliation regulations, and increased employer obligations to ensure that employees who report work-related injuries and illnesses are not subject to retaliation. 

In the preamble to the 2016 Rule, OSHA discussed how the Rule would apply to actions taken under safety-incentive programs and post-incident drug/alcohol testing policies.  OSHA’s stated concern was that safety-incentive programs and post-incident drug/alcohol testing policies could deter employees from reporting injuries or illnesses.  Indeed, OSHA stated that any safety-incentive program that could be construed to incentivize employees not to report an injury or illness would violate the Rule.  OSHA also indicated that safety-incentive programs that reward non-injured employees with safety bonuses or other rewards based on injury- or incident-free periods could be unlawful, to the extent  these sorts of incentives could deter employees from reporting injuries or illnesses. 

OSHA further warned that employers could not use post-accident or incident drug/alcohol testing, or the threat of such testing, as a form or retaliation against employees who report injuries or illness from accidents.  In further commentary and guidance on the 2016 Rule, OSHA opined that post-accident testing would survive agency scrutiny only if there was a “reasonable possibility” that substance impairment caused a work-related accident and the test was administered in a manner that would allow the employer to identify whether the individual was impaired at the time of the accident.

OSHA’s preamble and guidance has created considerable confusion among employers regarding the permissible scope of safety-incentive programs and post-incident drug/alcohol testing under the 2016 Rule.

OSHA’s New Standard Interpretation—Safety-Incentive Programs

In its October 11, 2018 Standard Interpretation Memorandum, OSHA clarified that the 2016 Rule does not prohibit safety-incentive programs.  In an important shift, OSHA now acknowledges that safety-incentive programs “can be an important tool to promote workplace safety and health.”  

OSHA also describes types of incentive programs it believes are permissible under the Rule.  Safety-incentive programs that “reward[] workers for reporting near-misses or hazards, and encourages involvement in a safety and health management system,” are “always permissible” under the 2016 Rule to the extent that such programs provide positive reinforcement for reporting illnesses and injuries.

The new Standard Interpretation also discusses rate-based safety-incentive programs (“rate-based programs”), which focus on reducing the number of reported injuries and illnesses by offering prizes or bonuses based on injury- or incident-free periods, or evaluating managers based on their work unit’s number of injuries.  OSHA now indicates that these rate-based programs are permissible “as long as they are not implemented in a manner that discourages reporting [of injury or illness].”  The agency warns that “if an employer takes a negative action against an employee” under a rate-based program, such as withholding a prize or bonus, the program remains permissible only if the employer has “implemented adequate precautions to ensure employees feel free to continue reporting injury or illness.”  Precautions are deemed sufficient if the rate-based program includes elements such as:

• an incentive program that rewards employees for identifying unsafe conditions in the workplace;

• a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy; and

• a mechanism  for accurately evaluating employees’ willingness to report injuries and illnesses.

OSHA’s New Standard Interpretation—Post-Incident Drug/Alcohol Testing

In a development favorable to employers, OSHA has moved away from its initial 2016 claim that post-incident testing was permitted only when the employer believed there was a “reasonable possibility” that illegal drug (or alcohol) use “could have contributed” to the incident.  Now, a request for a post-accident test would violate OSHA injury-reporting retaliation prohibitions only “if the employer took action to penalize the employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”  The new interpretation eliminates any suggestion that post-incident testing be based on “suspicion” that employee drug or alcohol use contributed to an accident. 

Pronouncing “most instances of workplace drug testing” are allowed under the injury reporting rule, OSHA specifically deemed all of the following drug testing to be permissible:   

• Random drug testing.

• Drug testing unrelated to the reporting of a work-related injury or illness.

• Drug testing under a state workers’ compensation law.

• Drug testing under other federal law, such as a U.S. Department of Transportation rule.

• Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.  If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

Thus, employers will want to make sure they state somewhere in their post-incident testing policy that the Company “reserves the right to test all employees whose conduct may have contributed” to the incident. 

Prior Interpretations Superseded; Enforcement Under New Standard Required

Two other statements in OSHA’s new Memorandum also are very helpful for employers, both with respect to incentive programs and post-incident drug/alcohol testing:

To the extent any other OSHA interpretive documents could be construed as inconsistent with the interpretive position articulated here, this memorandum supersedes them.

Click here to read the full article.......


Article written by: TOM METZGER, NANCY DELOGU, DALE DEITCHLER, KEVIN GRIFFITH AND BEN MOUNTS

Article published on: Oct 11, 2018 /Published by: Littler

Article spotted by: Kathryn Benson And posted by: Louise Burden