October 20, 2016
Governor Brown recently signed SB 1167, which goes into effect on January 1, 2017. The new law directs Cal/OSHA to draft and propose heat illness and injury prevention standards for indoor worksites by January 1, 2019. Specifically, the legislation adds Labor Code Section 6720, which states in relevant part:
By January 1, 2019, the division shall propose to the standards board for the board’s review and adoption a standard that minimizes heat-related illness and injury among workers working in indoor places of employment. The standard shall be based on environmental temperatures, work activity levels, and other factors. … This section does not prohibit the division from proposing, or the standards board from adopting, a standard that limits the application of high heat provisions to certain industry sectors.
Outdoor workplaces in California have been regulated to prevent heat illness since 2006. California employers are required to provide agricultural workers, construction workers, landscapers, and others who work outdoors with water, shade, rest breaks, and training. Additional requirements apply when the outdoor temperature exceeds 95 degrees. SB 1167 is designed to address heat-related illnesses of indoor workers, such as warehouse and factory workers.
Although these indoor heat standards will not go into effect until 2019, existing California law already protects employees from working in dangerous conditions indoors. Most California employers are required to establish and implement an effective Injury and Illness Prevention Program ("IIPP"). Last year, the California Occupational Safety and Health Appeals Board upheld citations against a temporary staffing agency and a warehouse operator after a warehouse worker was hospitalized with heat stroke. The Appeals Board ruled that the employers’ IIPPs failed to address the hazard of indoor heat. National Distribution Center, Cal/OSHA App. 12-R6D2-0391, 12-R6D2-0378, Decision After Reconsideration (Oct. 5, 2015). In addition to penalties imposed in regulatory enforcement actions, employers who expose their workers to dangerous indoor heat conditions may face individual and class action lawsuits.
Laws and regulations governing indoor heat particularly impact shipping, transportation, and logistics companies. These companies often employ warehouse workers who may be subject to high indoor heat. Moreover, although the public enjoys air conditioning at airports, baggage handlers working underground may suffer from overheated conditions.
Identical issues arise in the broad range of workplaces about to be regulated, such as manufacturing, retail and hospitality. In hotel operations, for example, where room air conditioning is used by guests, but is customarily turned off when rooms are cleaned.
Employees who work in conditions which are, or are perceived to be, in violation of safety standards should be expected to seek enforcement of this rule. Because this legislation is so open-ended, subject to clarifying implementing regulations, it is to be expected that the plaintiffs’ bar (and even the Labor Commissioner) will seek to define enforcement in the courts. A further factor that portends a gathering storm is a rapidly expanding field of retaliatory theories of liability, where, inevitably, an employee complaint can form the basis of a lawsuit, even where the underlying conditions themselves would not necessarily have been unlawful.
In 2013, the California state legislature amended the California Labor Code, giving employees exposed to high heat conditions the right to recover penalties against an employer for failure to provide cool down recovery periods. These types of claims surfaced in several class action lawsuits alleging that employers had failed to implement cool down recovery period policies. Employers should be prepared for similar individual and class action claims relating to indoor working conditions in the wake of SB 1167.
In non-union workplaces, it is not uncommon for allegations of substandard working conditions to provide leverage to union organizing efforts. This factor highlights the need for employers to carefully integrate and implement their handbooks and other employee policies on this issue. Moreover, the National Labor Relations Board has substantially heightened its scrutiny on employer polices, including a recent case that questioned employer confidentiality policies during workplace investigations.