California Bill Addressing Heat Illness Prevention Moves Forward

​On May 25, the California State Assembly approved Assembly Bill (AB) No. 2243, with the bill now proceeding to the Senate for a vote.

The bill has gone through revisions in the past two months, but it would require the California Division of Occupational Safety and Health (Cal/OSHA) to submit a rulemaking proposal to the Occupational Safety and Health Standards Board to "consider revising" the regulation on heat illness "to include an ultrahigh heat standard for employees in outdoor places of employment for heat in excess of 105 degrees Fahrenheit." The revised standard would include provisions such as "additional mandatory paid rest and recover [sic] breaks every hour, more accessible cool water," shade with cooling features, and "increased employer monitoring of employees for symptoms of heat-related illnesses in addition to other protections the division may consider for the standard."

Based on the draft language, the new statute would require both "rest" and "recover[y]" breaks every hour. As defined by the Labor Code and Cal/OSHA rules, a rest break must last at least ten minutes, whereas a recovery period is a "cooldown period afforded an employee to prevent heat illness," pursuant to Labor Code section 226.7(a). As such, the statute may contemplate that 10 minutes out of every hour be devoted to a paid break, along with additional cooldown periods as needed by employees.

While employers will need to take steps to protect their workers, requiring these hourly break periods will be extremely onerous to implement and track, with California imposing strict penalties for any variance from this potentially unbending standard.

In addition to requiring updated and additional Cal/OSHA heat illness regulations, the bill would require that Cal/OSHA consider updating its regulations to require respiratory protection equipment at an Air Quality Index of 301 or more. The bill would mandate that Cal/OSHA submit the proposals to the standards board before Jan. 1, 2024, so that the standards board may review and adopt revised standards before July 1, 2024.

Alexander M. Chemers is an attorney with Ogletree Deakins in Los Angeles. Karen F. Tynan is an attorney with Ogletree Deakins in Sacramento, Calif. © 2022 Ogletree Deakins. All rights reserved. Reposted with permission.