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March 03, 2023
California appeals board clarifies heat standard requirement

California employers must provide potable water as close as possible to employees to encourage outdoor workers to consume water frequently, a California review panel decided, establishing a new precedent that clarified the state’s heat illness prevention standard’s requirement for drinking water, the Department of Industrial Relations announced February 27.

“This decision provides clarity and should serve as a reminder that employers must take adequate steps to ensure that potable drinking water is as close as practicable to workers,” Jeff Killip, chief of the California Division of Occupational Safety and Health (Cal/OSHA), said in an agency statement. “Staying adequately hydrated is essential to preventing heat illness, particularly during the hot summer months.”

On August 6, 2018, Cal/OSHA responded to a complaint and opened a safety inspection at the Rios Farming Co. vineyard in St. Helena. State inspectors found that some workers had to climb through multiple grape trellises to access drinking water, so the agency cited Rios Farming Co. for a repeat, serious violation for not having water as close as practicable for its employees.

The employer appealed the citation, and a state administrative law judge (ALJ) affirmed the citation on October 12, 2022, with a modified penalty of $27,000. On February 6, the Occupational Safety and Health Appeals Board (OSHAB) issued a precedential decision, clarifying that providing water “as close as practicable” under the heat illness prevention standard means that water must be as close as can reasonably be accomplished to encourage frequent water consumption.

The ALJ found, and the OSHAB affirmed, that the trellises were an obstacle that discouraged employees from frequently drinking water. The ALJ and board also found that other reasonable options were available to the employer, such as providing a jug of water in each row where the employees were working or providing individual water bottles that employees could carry with them and refill from the jugs.

The OSHAB is a three-member judicial body appointed by the governor and confirmed by the state senate to handle appeals from private and public sector employers regarding Cal/OSHA citations for alleged workplace safety and health violations.

Cal/OSHA’s heat illness prevention standard applies to all outdoor worksites. The state rule requires employers to provide outdoor workers with fresh drinking water, access to shade at 80 degrees and whenever requested by a worker, and cool-down rest breaks in addition to regular breaks. Written prevention plans required by the standard must include training on the signs of heat illness and what to do in case of an emergency.

There is no current federal heat stress or heat illness prevention standard. The U.S. Occupational Safety and Health Administration (OSHA) currently cites employers—often in response to complaints or reports of hospitalizations or fatalities—for violations of the Occupational Safety and Health Act’s General Duty Clause (§5(a)(1)).

Federal OSHA has an ongoing national emphasis program (NEP) of outreach, inspection, and enforcement for indoor and outdoor heat hazards. The agency also issued an advance notice of proposed rulemaking in 2021 for a federal heat standard that would apply to outdoor and indoor work settings.

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