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Here Comes the Sun da da da

Cal/OSHA launched its Heat Illness Prevention Program for the 2014 season this week. The goal of the program is to reduce cases of heat illness and to ensure compliance with California’s heat illness prevention standard, Title 8 California Code of Regulations section 3395. The launch brings questions about what exactly Cal/OSHA intends to enforce this season: The regulation as it is currently written? Or the regulation as Cal/OSHA proposes to change it?

According to the law, Cal/OSHA may only enforce Title 8 regulations as they are written. But, to be real, Cal/OSHA has a history of issuing citations based on how they wish the regulations had been written.

The list of proposed heat illness regulation changes will appear alarming to employers already working very hard to prevent heat illness and get some work done. From a compliance perspective, the most alarming change probably did not jump out at you. Here it is:

“Every employer shall establish, implement and maintain an effective Heat Injury and Illness Prevention Program”.

It sounds easy enough and the language is familiar; it comes from the IIPP section, Title 8 CCR section 3203.

However, it is Cal/OSHA’s golden ticket to citation in the event of any heat related illness – however unanticipated. This is true for a couple of reasons. The most obvious is that in the event of a heat related illness, Cal/OSHA will argue that obviously the employer’s program was not effective and / or adequately implemented.

Further, this language would give Cal/OSHA authority to issue citations to an employer for not following its own program (the implementation part), even for portions of the employer’s plan not mandated by 3395. This means that even if the employer is fully complaint with the written regulation, a citation could be issued if that employer did not following exactly provisions it added to its program with the intention of creating a workplace safer than even Cal/OSHA envisions. Well intentioned employers will suffer.

Don’t think good intentions will be punished? Here is an example:

An employer added acclimatization procedures to its written plan for new workers. Although its new employee (who reported recent experience in the field) was given the least strenuous job on the site, he suffered a heat related illness. Cal/OSHA issued a serious, accident-related citation to the employer for failing to provide the acclimatizing training called for in its written program, even though there is no (current) requirement in 3395 which describes how to acclimatize employees. Thus, Cal/OSHA sought to hang the employer on rope provided by the employer himself.

Although Cal/OSHA lost that case (despite an aggressive defense!), it continues to issue similar citations. And, Cal/OSHA is now moving to make future citations stick by amending the regulation.

Lessons here: Beware of seemingly benign language in a regulation. And, as with all written safety programs: Do what you say you are going to do.

Finally, we were going to provide you with a link to the proposed regulation, but cannot find one on Cal/OSHA’s website. If you wish to see the proposal, contact us and we’ll send you a copy.

lisa-sig

Comments

Comment from Dave Smith
Time May 5, 2014 at 2:45 pm

A quick look at the Heat Illness Prevention Q&A (http://www.dir.ca.gov/DOSH/heatIllnessQA.html) is interesting. The regulation has a requirement for the written program to have “procedures for complying with the requirements of this standard” which is general dutyish enough to cover anything a compliance officer would want. Lisa is right: Less is more written programs.

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