By Christopher Dolan and Emile Davis
This week’s question comes from Danny T., who asks:
Q: “I work in construction and a lot of times I work outside in the heat and cold. Other times, when I am in the shack doing paperwork, they keep it way too hot, like 80 degrees. Are there rules about this that I should know — like, can they make me work in the rain, or send me home with no pay if it is too wet to work?”
A: Thanks for your question, Danny. It is important to know your rights in the workplace. You didn’t mention whether you were a member of a union but, if you are, the first place to look for answers would be your Collective Bargaining Agreement. If that doesn’t specify relevant terms, or if you are not a union member, then regulations administered by the California Occupational Safety and Health Administration (Cal/OSHA) and federal Occupational Safety and Health Administration would govern your situation.
I will address two issues you raise here: (1) Rules for working outside during weather events; and (2) Temperature requirements in indoor areas.
Working outside, as you know, creates a number of issues related to a worker’s health, safety and comfort, especially when workers are exposed to heat, cold, rain or snow. Heat illness can be deadly. In 2005, California became the first state to adopt a heat illness prevention standard to protect outdoor workers. Under California Code of Regulations, Title 8, Section 3395, employers are required to provide employees who work outdoors with free and reasonably cool water, a place of shade, cool-down rest breaks, and training on how to recognize and prevent heat illness. When the heat is more extreme, over 95 degrees, employers must implement special High-Heat procedures to monitor workers.
Cold weather can also present serious dangers to outside workers. Cal/OSHA recognizes and warns of the dangers cold-stress presents, particularly hypothermia, frostbite and trench-foot. However, unlike heat, there are no specific standards or requirements employers must follow at either the state or federal level. However, under the General Duty Clause, Section 5(a)(1) of the federal Occupational Safety and Health Act, employers are required to provide their employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.” California also has a catch-all standard, California Code of Regulations, Title 8, Section 3203, that requires most employers to establish and implement an effective Injury and Illness Prevention Program (“IIPP”).
These general standards are also applicable to rain and snow. An employer can require that people work outside in the rain, but if the weather conditions make the outdoor worksite too dangerous, the employer has a responsibility to cease the work. If the cancellation occurs part way through the work day, you may be entitled to “reporting time pay,” or compensation for 50 percent of the time you had been scheduled to work. This requirement is subject to exceptions for utility failures and “acts of God,” such as earthquakes. Unfortunately, if work is cancelled prior to the start of the work day, there is no obligation to pay affected workers.
There is also no current mandated standard for indoor workplace temperature at either the state or federal level. The United States Department of Labor does, however, make a recommendation in its technical manual: employers should maintain indoor temperature in the range of 68-76° F, with humidity in the range of 20 percent — 60 percent. The Cal/OSHA appeals board has also upheld citations against warehouse operators whose prevention program failed to address indoor temperature regulation, leading to employee injury. (National Distribution Center, Cal/OSHA App. 12-R6D2-0391, 12-R6D2-0378, Decision After Reconsideration (Oct. 5, 2015)).
The concern over the lack of specific rules for indoor workers is increasing. In 2016, then Gov. Brown signed a bill directing Cal/OSHA to draft and propose standards for indoor worksites “that minimizes heat-related illness and injury among workers working in indoor places of employment.” A draft standard was circulated to Advisory Committees in October of last year that proposed requiring employers, when indoor workplaces rise above 82 degrees, to provide cool-down places, make policies requiring or providing appropriate clothing, and implement training and a heat-illness plan. However, this standard has not yet been enacted.
If you are ever asked to work in an environment that is unsafe, it is a good idea to document your opposition in writing to your employer and Cal/OSHA. The law protects workers who oppose unsafe working conditions: California Labor Code 6310 makes it unlawful for an employer to retaliate against a worker who makes this type of complaint. If you do suffer retaliation for opposing an unsafe work environment, immediately reach out to a quality employment lawyer, such as those at Dolan Law Firm PC.
Christopher B. Dolan is owner of the Dolan Law Firm. Email questions and topics for future articles to email@example.com.
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