THE 45-DAY PUBLIC COMMENT PERIOD There are no modifications to the information contained in the Initial Statement of Reasons except for the following substantive, non-substantive and sufficiently related modifications that are the result of public comments and/or Board staff evaluation.
The scope and application have been modified to specify in subsection (a)(1) that this standard applies to all outdoor places of employment. An exception is added that will exempt certain industries from compliance with subsection (e), High-heat procedures. Subsection (a)(2) specifies industries that will be required to comply with all provisions of the standard, including subsection (e) High-heat procedures. These industries were identified based on their incidence of heat illness or fatalities as monitored by the Division from 2005 to the present. This change is in response to numerous comments to the Board that the industry groups that are not to be subject to the high-heat procedures have demonstrated an ability to protect their employees by complying with the requirements of the existing standard.
Subsection (b) has been modified to include definitions of “landscaping” and “oil and gas extraction” as these terms are not defined elsewhere in Title 8.
Subsection (c) has been modified to remove the qualifying language regarding potable drinking water. This change is in response to numerous comments to the Board that the wording is unclear, for regulatory purposes, and can be already inferred by the existing references to Sections 1524, 3363, and 3457.
Subsection (d)(4) has been modified to provide exceptions to the requirement to provide shade structures as required by subsection (d) for situations in which the shade structure creates an unsafe environment, or it is infeasible for shade to be erected or provided (for
instance, employees reading residential utility meters throughout the work shift). The exception requires the employer to provide alternative procedures that provide equivalent protection. This change is in response to comments to the Board describing specific incidents of shade structures creating safety hazards and numerous examples of highly mobile work that would be severely impacted by attempting to erect shade at each brief stop.
Subsections (f)(1) and (f)(2) have been modified to change the requirement for providing training about heat illness before beginning outdoor work. Employees would be required to be trained before beginning work that is reasonably anticipated to result in exposure to the risk of heat illness. Supervisors would be required to be trained before supervising employees who are performing work that should reasonably be anticipated to result in exposure to the risk of heat illness. This change is in response to many comments to the Board and at the advisory meeting of November 16, 2009, that it would be counter-productive to require heat illness training for employees and supervisors if they are hired or assigned to outdoor work during colder seasons.
Summary and Response to Written and Oral Comments:
I. Written Comments
Jay Zamora, Pacific Technical Resources, by email dated September 9, 2009 Comment #JZ1: The commenter objects to the amendments to subsection (c) regarding the provision of training and the importance of frequent consumption of small quantities of water, up to four cups per hour under extreme conditions of work and heat. How can employers be required to train employees to drink water, up to four cups per hour? What if the employee doesn’t want to drink it, should the employee be disciplined? It is becoming increasingly burdensome on employers to take on personal responsibility that should be the responsibility of the employee. Why should an employer be responsible to train employees on the need to re-hydrate, when heat exhaustion happens more frequently outside of work activities? When employees visit the beach or Disneyland, there are no such provisions for hydrating with up to four cups an hour, yet a large number of people visit such places without the need for someone or something to remind them to hydrate. It is equally important to have a nutritional meal such as breakfast before starting any strenuous activity such as jogging or mowing a lawn. Should an employer have to train employees on the benefits of eating a healthy breakfast?
Response #1: The Board notes that the requirement in subsection (c) is to provide important information to employees to preserve their health while working in adverse conditions. It is crucial for employees to believe that they can drink water as needed without reprisals. When an employer properly provides training, employees will see access to water as a normal and permissible part of work. The Board also believes that working in a high heat environment cannot be compared to vacationers in a hot environment who can at any time leave the area or obtain fluids when they wish.
Comment #JZ2: The commenter objects to the amendments to subsection (d) regarding the term “believing a preventative recovery period is needed.” This language is very broad and allows for a wide interpretation with respect to “believing” a preventative recovery period is needed. With the language as written, is becomes an avenue for employees to take advantage of a situation under the guise of heat illness with no means to inquire as to an employee's veracity.
Response #2: The Board notes that there is currently no means for an employer or employee to objectively monitor the physiological demands of an individual in response to high heat, outside of a medical facility or laboratory and without the use of invasive personal monitoring devices. Consequently, the more subjective criteria of how an employee is feeling must be utilized as the best available means for identifying when recovery from heat illness is needed. The Board believes that the majority of employees who are affected by this regulation will be disinclined to “take advantage” of a process that will lessen their pay when that is tied to actual production. Comment #JZ3: The commenter objects to the amendments to subsection (d) regarding “for a period of no less than five minutes…” as it does not provide for a cap or a limit as to the length of time an employee can “believe” a recovery period is needed. This is largely left up to the employee and some employees may take advantage of this section as written. The section is careful to list a minimum; however a maximum is not provided, why?
Response #3: Medical experts testifying during the advisory meetings and Board hearings generally agree that recovery from heat illness is not a brief process. None of the presenters with expertise believed that significant recovery could be achieved in less than five minutes. Most believed that substantially more time should be provided for that process. In the absence of a prescriptive time period, the process depends upon the more subjective perception of the employee as noted in the response to comment #JZ2.
Comment #JZ4: The commenter questions the amendments to subsection (d) regarding why the temperature of 85 degrees was selected as the threshold or trigger point? Being based in Southern California where most days are at or above 85 degrees it seems like this trigger is rather low.
Response #4: At the November 9, 2009, advisory meeting the Division reported from its compliance experience that the number of calls regarding heat problems to Division offices increases when the local temperature reaches and exceeds 85 degrees. Heat illness cases are also associated with a general threshold of 85. Comment #JZ5: The commenter questions the amendments to subsection (e) regarding what determines or defines “specific information establishing the employee is acclimatized to work in heat of excess of 95 degrees?”
The Board believes that basic documentation of the work showing the time period and location of work would be the minimum substantiation. A record showing the location could be used to verify that a person has been in high temperatures by consulting the weather service records, if the location is not in the same general area as the hiring employer. Although this might seem to be burdensome to some, the Board notes that it is to the advantage of the employer to apply the exception for restricting the work time of a new hire.
Comment #JZ6: The commenter objects to the amendments to subsection (f) regarding requiring certain supervisors be trained on how to monitor weather reports and how to respond to hot weather advisories. The employer should not be in the business of interpreting weather reports nor be required to learn how to interpret changing weather conditions.
Response #6: The Board believes that inadequate acclimatization can imperil anyone exposed to conditions of heat and physical stress significantly more intense than what they are used to. Employers are responsible for the working conditions of their employees, and they must act effectively when conditions result in sudden exposure to heat their employees are not used to. Thus, monitoring the weather is a crucial step in ensuring that employers stay alert to warnings of a heat wave or sudden increases in temperature and that this information is taken into consideration to determine if the work schedule, work-load and number of scheduled water and rest breaks will require modification.
Comment #JZ7: The commenter objects to the cost statement for the proposal. It became increasing clear that the Occupational Safety and Health Standards Board (Board) does not consider the employers point of view or the cost burden of any new legislation or changes in existing legislation. To suggest that the Board is not aware of any cost impact that a representative private person or business would necessarily incur in reasonable compliance with the proposed action is simply not true and is blatantly misleading. Every time the Board changes or adopts new legislation there is a cost to the employers. With each of these proposed changes, I have to stop my working crews and bring each one of them to the office to be trained on the new law. This presents a significant challenge and expense to an already cash strapped business, industry and economy.
Moreover, the Board appears to be grossly out of touch with most if not all employers. This is evidenced by the Board's comment regarding no fiscal impact on a private person or business with the proposed changes to this regulation. Further, the Board could have used this opportunity to address real issues such as:
Working in a full body 40 Cal/CM2 Arc Flash Suit in a work environment with temperatures of 70 degrees with limited visibility
Working in a Confined Space in temperatures of greater than 85 degrees
In closing, it is offensive that time and energy is being put forth into such legislation and instead of educating both employers and employees alike in practical issues we are instead choosing to educate employees on when to drink water. The commenter would welcome the opportunity to host one or more of the Board members at his facility to educate them on practical issues that are of concern to employers and employees.
Response #7: The Board acknowledges that the implementation of new requirements usually requires additional training for employees as to identifying a hazard and how to properly avoid it in a manner that is consistent with the regulation. It should be noted that the requirement to train employees about the issues proposed are already addressed by many employer’s current training programs. In stakeholder meetings with affected employers, they reported that the proposed training was commonly done and any minor costs incurred were offset by improved efficiency and productivity of properly trained workers. Please also see the response to comment #JR5. The Board notes that the comments about welding and confined space are better addressed by current Title 8 standards for those hazardous work operations.
Dave Harrison, Special Representative, Operating Engineers Local Union No. 3, by letter dated September 18, 2009 Comment #DH1: The commenter objects to the amendments to subsection (d) since subsection (d) lacks an “exception for shade requirements in the construction industry, when erecting shade will create a higher hazard or is unfeasible.” The commenter recommends to the Board that Section 3395(d) be modified.
Response #1: The Board acknowledges that many individual commenters expressed the generalized concern that there are a number of circumstances in which erecting shade is problematic from a feasibility and even a safety perspective. This issue was discussed at length at the November 9, 2009, advisory committee meeting, and the proposal has been modified to take account of infeasibilities and the impairment of safety.
Carolyn Cavecche, Mayor, City of Orange, by letter dated September 22, 2009 Comment #CC1: The commenter objects to the water requirements as being ambiguous and is concerned that they may be cited for not being in compliance if the water is not at a certain temperature that has yet to be defined. The commenter urges the Board to keep the current definition of “potable” water.
Response #1: The Board concurs that the proposed amendment does not necessarily clarify subsection (c) and believes that the Division can rely on other safety orders for enforcement purposes. Therefore, the Board withdraws that wording from the proposed amendments.
Comment #CC2: The commenter questions the “shade up” requirements, as they will create a significant burden on mobile field crews and impact their work schedule; “we have several mobile crews such as sign crews that can make up to 15 stops per day. Many of these crews will work at location for no more than 10 – 15 minutes at a time.” If “shade-ups are required to be up when the temperature exceeds 85 degrees, it may take half that time to put up the shade and then take it down again during each of these stops.” The commenter urges the Board to adopt a shade exception for mobile work crews and maintain the current requirement for access to shade.
Response #2: The Board notes that many employers with continuously moving field crews have expressed this same concern. The Board concurs and proposes that this requirement be amended as noted in the response to comment #DH1.
Comment #CC3: The commenter inquires about the feasibility of the high heat procedures. “The requirement to observe employees for alertness and signs or symptoms of heat illness is vague”… “Because we have some employees who work alone, does this mean we would be required to send a supervisor to check on them every day the temperature exceeds 85 degrees? And how often would they need to observe the employee? Every hour? Every two hours?”
Response #3: Please see the response to comment #CG4.
Comment #CC4: The commenter questions the requirement that employers remind employees throughout the shift to drink plenty of water. “Once again, the vagueness of what is meant by how often?”
Response #4: The Board believes that water provides the body’s single best defense against heat other than removing heat exposure itself. Continuous replacement of fluids is critical, so these reminders are important because employees are there to work, and many of them may not feel how urgently their bodies need water. The frequency of the reminders will not be the same for all operations, as it will be based on the specific conditions present at each individual site, such as ambient temperature, relative humidity, radiant heat, workload intensity and duration, personal protective equipment, etc. Please also see the response to comment #ET5.
Comment #CC5: The commenter objects to the mandate to provide close supervision of an employee for the first 14 days on the job, as an “infeasible monitoring requirement” that can lead to misinterpretation.
Response #5: The Board believes that inadequate acclimatization can imperil anyone exposed to conditions of heat and physical stress significantly more intense than what they are used to. New employees are among those most at risk of suffering the consequences of inadequate acclimatization, heat wave or not. Just as one would not assume that a new employee immediately and on the first day understood their new job assignments and company policy and procedures, one would not assume that a new employee becomes acclimatized on the first day. The Board believes that close supervision of new employees is necessary to stay alert to the presence of heat related symptoms.
Comment #CC6: The commenter notes that it is her understanding that “there has been no occupational heat illness fatalities recorded in 2009 and the majority of the heat illness hospitalizations in prior years have occurred in the agricultural industry.” The commenter adds that “It is unfair and counterproductive… to be required to comply with additional layers of regulations that will result in minimal additional health protections for our employees but will severely have an economic impact of our resources.” The commenter recommends to the Board that “if Cal/OSHA finds it necessary to develop additional heat illness regulations… they should only be applied to the agricultural industry” and urges the Board to not “support the proposed changes to the Heat Illness Prevention regulation as it is currently written.”
Response #6: The Board concurs that imposing the high heat procedures for all industries currently covered by the heat regulation would be too broad. Please see the response to Comment #JF1. Garth Patterson, Heat Relief Solutions, by letter dated September 22, 2009 Comment #GP1: The commenter recommends to the Board that Section 3395 include an option for misting fans or a relief station equipped with cooling measures including first aid, seating, cool water and shade as an additional form of protection for outdoor workers in agriculture. “The technology now exists to make this an affordable addition to the safety plan and protect workers from heat stroke and death. The body core temperature is the factor that causes death rapidly if untreated. Placing a person in 100 degree shade when in heat stress is not the solution the person needs to be cooled immediately...”
Response #1: The Board believes that misting equipment is already described in the standard, and it is unclear what is meant by a “relief station.”
John Robinson, CEO, California Attractions and Parks Association Inc, by letter dated September 22, 2009 Comment #JR1: The commenter urges the Board to exclude California’s theme, amusement and water parks from the proposed amendments of Section 3395. “Industries are not all the same in terms of heat illness risk factors, methods of control, or emergency response. One size rule does not fit all...”
Response #1: The Board concurs that not all industries should be required to adopt the high heat procedures. Please see the responses to comments #JF1 and #WH1.
Comment #JR2: The commenter questions the amendments of subsection (c) regarding the quality of drinking water and the additions of “fresh, pure, suitably cool.” “These qualifiers were taken from the standard for agriculture… They are not necessary for theme, amusement and water parks…”
Response #2: The Board concurs that the change does not necessarily clarify subsection (c) and withdraws the proposed change. Please see the response to comment #CC1.
Comment #JR3: The commenter objects to the amendments of subsection (d) regarding access to shade, the requirements of having shade up at 85 degrees and for 25% of the employees, as no allowances are made for the feasibility of erecting that much shade in temporary or transient locations.
Response #3: The Board agrees that erecting shade for employees who are constantly relocating throughout the shift should not be required and has proposed revised language as noted in the response to comment #DH1; however, it should be noted that this exception would not apply to a location that is simply “temporary” since the term can be construed to mean anything from a few minutes to a few years.
Comment #JR4: The commenter questions the amendments of subsection (e) regarding high heat procedures, as these procedures “are entirely new and impose additional burdens. Nothing in the record indicates that the current regulations followed by theme, amusement and water parks are insufficient for high heat conditions.”
Response #4: The Board concurs that imposing the high heat procedures for all industries currently covered by the heat regulation would be too broad. Please see the response to comment #JF1.
Comment #JR5: The commenter objects to the amendments of subsection (f)(1) regarding employee training and prohibiting outdoor work until the employee has received the training required by 3395(f).
Response #5: The Board notes that there have been comments both supporting and objecting to the proposed language requiring employers to train employees and supervisors about the hazards of heat illness before they begin working outdoors. The capriciousness and rapid occurrence of non-seasonal higher temperatures is a part of the state’s climate and can be problematic. However, the Board acknowledges that training employees and supervisors about heat illness during colder seasons may be counter-productive since the perception of the problem may be low, and employees and supervisors might need to be trained again when the warmer weather begins. Consequently, the proposal has been modified to require that employees are to be trained before beginning work that is reasonably anticipated to result in exposure to the risk of heat illness. Similarly, supervisors would be required to be trained before supervising employees who are performing work that should reasonably be anticipated to result in exposure to the risk of heat illness. The Board further notes that if there is an unseasonal onset of high temperatures, employers would be required to provide the necessary training before permitting the employees and supervisors to be exposed.
Joel Cohen, MPH, CIH, CIHC Board Member, Project Manager and Howard Spielman, PE, CIH, CSP, CEHS, CIHC President, California Industrial Hygiene Council, by letter dated September 24, 2009 Comment #JC1: The commenters are in favor of the proposed amendments to Section 3395. However, the commenters are concerned with the ‘science” behind the proposed changes as is related to California employment outside of agriculture. The commenters urge the Board to consider another option for non-agriculture industry employers and recommended changes.
The commenters recommend that the Board require that the program be in writing and include a responsible person, procedures for acclimatization, procedures for recognizing and addressing combined environmental factors, factors that affect and/or offer relief to the workers (i.e., clothing, work/rest regimen, etc.), and procedures for addressing the individual physical condition of the worker. The commenters suggest that as an ‘optional’ requirement “employers conduct heat strain physiologic monitoring using techniques such as heart rate, body core temperature or recovery heart rate.