Contrary to popular belief—though certainly fueled by the anti-social, anti-friendly and less-than-charming personalities generally associated with my profession—I wasn’t always a lawyer. I’ve actually held gainful employment in much more respected fields, including as a “boxboy” for a grocery store and as assistant-manager-in-training at an old world delicatessen. But the best “real” job I ever held, the one that really had some flair to it, was when I worked as a “pool boy,” cleaning swimming pools for the “real housewives of the OC.” 1
Working in that capacity was, frankly, not as glamorous as today’s prime time, sex-laden dramas would have you think. Sure, I got a great tan and there was lots of flirting, but it was hard work. It wasn’t just me and a skimmer pole walking around gorgeously manicured grounds checking chlorine levels and otherwise lounging about. It involved significant labor—much of which wasn’t done in the winter, when pools were dormant and it would make sense. Nope, it always seemed to get done in the middle of the sweltering summer, when the customer was irritated by every minute that they couldn’t be in their pool and it was hot as Hades outside.
Which brings me to the ultimate point of this column: heat and the workplace. As summer begins to hit full stride in the North Bay, companies with employees who work outdoors need to be mindful of heat illness prevention. I raise this issue not because of some soft spot in my heart given my job history, but because Cal-OSHA recently issued guidance relating to the prevention of heat illness, and during the summer months, outdoor employers can expect DOSH inspections to ensure heat illness prevention measures are being taken.
Employers with outdoor employees have four basic heat illness prevention obligations: Water, Shade, Train and Plan. This means employers must provide water and shade, train employees and supervisors on heat illness prevention and develop a plan for doing so that’s consistent with Cal-OSHA’s heat illness prevention standards.
Outdoors vs. indoors. As simple as these four obligations seem, there are some points of confusion. First, there can actually be an issue about what constitutes working “outdoors.” While this might seem like a no-brainer, “outdoors” can include what might be construed as “indoors.”2 Cal-OSHA takes the position that an “indoor” place of work can be a place of “outdoor” employment. This can include structures such as sheds, tents, lean-tos and, ostensibly, teepees,3 if those structures don’t provide adequate heat reduction or ventilation.
Water requirements. The requirement to provide water is relatively basic. If employees don’t have reasonable access to a plumbed water supply, employers must provide a minimum of two quarts of water per hour (i.e. two gallons per eight hour shift) for each employee. If you provide the water at the beginning of the shift for the entire day, you must take steps to ensure the water remains both clean and cool.4
If you don’t provide all of the water at the outset, you must have a “reliable replenishment strategy” that ensures at least two quarts of water per hour, doesn’t delay replenishment until the water vessels are empty and doesn’t refill only when employees request it. Cal-OSHA also “recommends” that, on days when the temperature is in excess of 90 degrees Fahrenheit, employers have ice on hand to ensure the water remains cool.
Shade requirements. Employers with outdoor employees must also provide access to shade for employees to use to cool off, whenever they feel necessary, to prevent heat illness or if they’re suffering from heat illness. Shading requirements can change depending on outdoor temperature. If the temperature is below 85 degrees, then shade must be available if an employee requests it (or if the employee suffers a heat illness episode). Shade must be available if the temperature, as forecasted at 5 p.m. the day prior, will be 85 degrees or greater.5
Unlike men, however, all shade is not created equal. Cal-OSHA doesn’t accept as “shaded” any area in which the employee casts a shadow (i.e. the sun obviously gets to them). In addition, an enclosed shaded area is unacceptable unless it significantly reduces the temperature from the immediate external areas (that is, the hot interior of a car recently moved into shade doesn’t count). Finally, even if the area is shaded, it’s a violation to require an employee be put in harm’s way to get shade or require a contorted position to get into the shade. This precludes requiring employees to, say, crawl under heavy equipment to get shade.6
Finally, shade must be reasonably accessible—generally within a 2.5 minute walk. However, if circumstances prohibit shade in this proximity, shade must be within the lesser of a quarter mile or a 5-minute walk from the area in which the employees are working.
Keeping your cool and ensuring that your company, your supervisors and your employees understand heat illness prevention will make the dog days of summer less risky and more productive. If you need more information on heat illness prevention, check out http://www.dir.ca.gov/DOSH/HeatIllnessInfo.html.
1 Actually, my route was in neighboring San Bernardino County – a fact that really takes away from the glamour-laden image I was striving to evoke.
2 Sort of like the whole “all squares are rectangles, but not all rectangles are squares” thing.
3 The Cal-OSHA guidance doesn’t actually include teepees, but given our proximity to so many casinos, and the fact that I watched “Dances with Wolves” last night, I just couldn’t help myself.
4 Hopefully, it goes without saying that the water must be potable.
5 As an alternative to checking the weather the day before, employers may take hourly temperature readings each day.
6 If you’re the type of employer who’d do this, you better have one heck of a criminal defense lawyer!
