A coalition of employer groups led by the California Chamber of Commerce continues to argue that a Cal/OSHA proposed draft indoor heat illness rule needs changes to avoid unnecessary burdens on business while protecting employees as intended.
In a July 7 letter to state regulators, the coalition explains that the latest discussion draft of the indoor heat illness regulation continues to be overly complex and ambiguous and therefore will lead to a lack of compliance and inability of the state to enforce the rule.
Coalition members represent employers large and small across many diverse industries and take the safety and health of their employees very seriously. Many coalition members were involved with developing and implementing the outdoor heat illness regulation and have significant experience with how to effectively prevent heat illness.
Although incrementally better than the first draft from February 2017, the latest discussion draft still creates a program for indoor employees that is unnecessarily burdensome, expensive, overly complex and confusing. There is no justification for the indoor heat illness prevention regulation to be more stringent than the regulation for outdoor work environments.
The rulemaking is mandated by SB 1167 (Mendoza; D-Artesia; Chapter 839) of 2016, and therefore the necessity of a resulting regulation need not be demonstrated; however, the coalition urges the agency to review its own enforcement data and any available information concerning instances of heat illness among indoor workers.
While the legislative mandate requires the agency to move forward with this regulation, actual data reflecting how, why and what kinds of indoor workplace workers suffer heat illness will provide meaningful context to the agency’s proposed regulation. This data should be shared with the regulated community so employers’ experience and expertise can be applied meaningfully to crafting an indoor heat illness regulation that can protect workers without imposing unnecessary and ineffective mandates on covered employees.
Impact on Employers
Very few small and medium employers will be able to comply with this complex proposal without being forced to seek the assistance of an expert consultant, which will be a substantial burden for these employers. It also is unnecessarily prescriptive, much more so than the outdoor heat illness prevention regulation.
The coalition outlines its primary concerns:
• Statutory timing requirement. A rulemaking timeline consistent with legislative intent requires the Division of Occupational Safety and Health (Cal/OSHA) to submit a proposed regulation to the Cal/OSHA Standards Board by January 1, 2019. After the board’s receipt of the proposed rule, the process of review and stakeholder interaction with the division should begin. The final regulation should be a rule with which employers can comply, that protects employees and results from a measured, thoughtful process that is not needlessly rushed by a misinterpretation of the agency’s statutory mandate.
• Proposal is too complex. Employers must understand and comply with numerous regulations enforced by various agencies, in addition to Cal/OSHA regulations. The coalition strongly supports providing safe and healthful workplaces for its employees. If the rule is too complex for employers to understand and implement, the benefit of the regulation’s intended protection will be difficult to achieve.
• Proposal too costly. As written, the implementation costs would be significant for most if not all employers subject to the rule. Many employers will not have the expertise to interpret the complex requirements and would have to hire costly staff or consultants. The coalition asserts that the economic impact of this rule would exceed the $50 million economic impact threshold, making the rule a major regulation requiring an economic impact analysis. An alternative approach that is the most cost effective manner to achieve protection for workers is advised and achievable. The complexity of this proposed draft is unnecessary; worker protection can be achieved with less complexity and less cost. A more cost effective approach also would relieve the state of the obligation to conduct the required major regulation economic impact analysis.
Coalition Proposes Amendments
The coalition has provided amendments to draft a regulation that is general enough in nature to be adopted by varied workplaces without being overly burdensome and complex. It is consistent with the coalition’s remarks provided during the two advisory committees, as well as the remarks in the prior comment letter.
The amendments cover issues such as making the indoor heat illness prevention plan track more closely with the outdoor heat illness prevention plan, definitions, first aid, emergency response, control measures and recordkeeping.
Cal/OSHA is reviewing and considering the comments received from stakeholders. The coalition is hopeful that Cal/OSHA will make further revisions to the proposal incorporating coalition language followed by further consultation with stakeholders before moving forward to formal rulemaking. However, Cal/OSHA has not make its next steps public.