The regular monthly meeting of the Cal/OSHA Standards Board on March 21, 2024 was anything but regular. The agenda had included voting on a proposed indoor heat illness prevention standard that has been under development for several years. The standard was originally required by a 2016 law calling for it to be completed by 2019. Since then it has been developed with extensive stakeholder input and debate, including a public hearing in May 2023 that drew a large number of public commentors.
Stakeholders and members of the public were again present at the meeting on March 21, 2024, anticipating the proposal would be approved. However, at the beginning of the meeting, the Board chair announced that the heat illness prevention proposal had been removed from the meeting agenda the night before for reasons he said had not been explained to him and that he could not understand.
There ensued two hours of public comment (with which each meeting normally begins) in which emotions ran high, with many in attendance expressing anger and frustration about the removal of the heat illness prevention proposal. When public commentors refused repeated requests to stop chanting and beating a drum, the chair adjourned the meeting to try to control the room, resuming only after protestors were removed.
After the meeting was brought back to order, a representative from Cal/OSHA said the proposal had been removed from the agenda because the Department of Finance belatedly informed the Standards Board and Cal/OSHA that the potential fiscal impact on public sector entities had not been fully analyzed in the Standard Regulatory Impact Analysis (SRIA) supporting the proposal, and instead required further explanation. As a result, the department told Cal/OSHA that it would not provide its approval as normally required for the matter to proceed to a vote. The Office of Administrative Law cannot approve the regulation, the representative said, until it receives a complete and signed copy of a required approval form STDF3999 from the Director of Finance.
The Cal/OSHA representative said the agency would evaluate other options to promulgate the regulation as soon as possible. In the meantime the agency will use the Injury Illness Prevention Plan (IIPP) regulation and other tools to address indoor heat illness prevention in the absence of the anticipated standard. Some public commentors and one member of the Standards Board suggested that there is already a public health emergency in regard to heat that may justify invoking emergency rulemaking powers.
Complicating matters further, later in the meeting the Standards Board voted unanimously to approve the proposal notwithstanding its having been pulled from the agenda. The effect – if any – of that vote is a subject of debate, could prompt other actions yet to be seen, and may ultimately lead to legal action given the unprecedented circumstances.
What’s Next?
Because this procedural sequence for a Cal/OSHA rulemaking appears to be unprecedented, it is not clear what will occur next. California employers with work environments that may involve significant exposure to high heat should stay alert for further developments. These could include the adoption of the proposed heat illness prevention standard in a relatively short time. Employers should evaluate their existing approach to addressing heat in indoor work settings and work with counsel to determine whether any additional measures are appropriate to consider.
Littler will continue to monitor this active issue.
