/>iOn July 13, 2023, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) announced the launch of a three-year National Emphasis Program meant to prevent workplace hazards in warehouses, processing facilities, distribution centers, and high-risk retail establishments. OSHA’s announcement explains that warehousing and distribution centers have experienced tremendous growth over the past 10 years, with over 1.9 million people currently employed in the related industries. OSHA also notes that data from the Bureau of Labor and Statistics shows the injury and illness rate for warehousing and distribution centers is higher than the overall rate for private industry.
The stated goal of OSHA’s new National Emphasis Program is to “lead to permanent change.” Under the program, OSHA will conduct comprehensive safety inspections of warehouses and distribution centers for hazards related to powered industrial vehicle operations, material handling and storage, walking and working surfaces, access to exit routes, and fire safety. The specific warehouse and distribution centers subject to the National Emphasis Program include:
- Postal Service (NAICS 491110)
- Couriers and Express Delivery Services (NAICS 492110)
- Local Messengers and Delivery (NAICS 492210)
- General Warehousing and Storage (NAICS 493110)
- Refrigerated Warehousing and Storage (NAICS 493120)
- Farm Product Warehousing and Storage (NAICS 493130)
- Other Warehousing and Storage (NAICS 493190)
However, OSHA’s focus is not exclusively on warehouses and distribution centers. Retail establishments with the highest rates of illness and injury will also be subject to inspection with special attention given to storage and loading areas. The specific “high-injury retail establishments” subject to the National Emphasis Program include:
- Home Centers (NAICS 444110)
- Hardware Stores (NAICS 444130)
- Other Building Material Dealers (NAICS 444190)
- Supermarkets and Grocery Stores (NAICS 444110)
- Warehouse Clubs and Supercenters (NAICS 452311)
Importantly, OSHA will also assess heat and ergonomic hazards and commence inspections if these hazards are determined to be present. This is in line with OSHA’s recent trend of applying increased scrutiny to heat-related hazards. In October of 2021, OSHA began the rulemaking process for a potential heat-specific workplace standard by publishing an Advance Notice of Proposed Rulemaking for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings. While a final rule has not been adopted yet, in April 2022, OSHA commenced a National Emphasis Program to address indoor and outdoor heat-related hazards.
On July 27, 2023, OSHA announced a heat hazard alert to remind employers of their obligation under the April 2022 National Emphasis Program regarding outdoor and indoor heat-related hazards, and also announced it will intensify its enforcement to fully implement the Program, focusing its efforts on vulnerable geographic areas and industries, such as construction and agriculture. With OSHA’s recent focus on warehouse safety and heat-related hazards, employers should be mindful of their obligations under both National Emphasis Programs, as each will be enforced in the coming year.
State Plan Requirement
States with “State Plans” must adopt this new federal program or establish a different, equally-effective program within the next six months. There are currently 22 State Plans covering both private sector and state and local government workers, and seven State Plans covering only state and local government workers.[1]
Effect for California Employers
California’s State Plan has long contained a heat illness prevention regulation that applies to outdoor workplaces. The California state regulation requires the creation of a written Heat Illness Prevention Plan (“HIPP”) and requires employers to train employees and supervisors on heat illness prevention. Covered employers are also required to provide acclimatization, water, cool-down breaks, and proper shade.
In indoor workplaces such as warehouses, unsafe conditions associated with heat have traditionally been addressed as part of an employer’s Injury and Illness Prevention Program (“IIPP”). However, the idea of requiring indoor heat illness prevention programs is not a new idea for California. The California Legislature first directed the California Division of Occupational Safety and Health (“Cal/OSHA”) to take up the issue of adding indoor heat regulations that would mirror protections for outdoor workers in 2016, but such regulations are still in the process of development.[2] In 2020, California adopted a Special Emphasis Program that addresses indoor heat hazards.
More recently, a proposed regulation was published on March 31, 2023. The regulation would apply to all indoor places of employment with temperatures at or above 82 degrees Fahrenheit while employees are present. In addition to requiring the provision of water, cool-down areas, and training, it would require that employees under certain conditions be closely observed during acclimatization periods. The proposed regulation would also require employers to amend their HIPPs to incorporate these indoor standards.
Cal/OSHA estimates that the proposed regulation will impact 195,462 private sector establishments and may result in 15 to 25 additional inspections per year.[3] A number of industry representatives have pushed back on the proposed regulations. For example, food and restaurant industry representatives warned that regulations requiring temperature adjustments for food equipment could violate health and food safety codes.[4] A final vote on this regulation is not expected until 2024.
Given OSHA’s increased scrutiny on warehouses and distribution centers and its requirement that State Plans effectively incorporate the National Emphasis Program, including its specific focus on heat hazards, it is increasingly likely that an indoor heat illness standard will be adopted. This is particularly true given both Cal/OSHA’s July 12, 2023 News Release and OSHA July 27, 2023 heat hazard alert reminding employers to protect workers from heat related injuries during the recent heat waves. Going forward, California employers should continue to ensure their warehouses and distribution centers are adequately equipped to deal with high temperatures and prepare to amend their HIPPs.
Takeaway
Employers in the specific industries covered by OSHA’s new National Emphasis Program or with employees who work in warehouses, processing facilities, distribution centers, or high-risk retail establishments should be prepared for these new safety inspections. California employers should be particularly mindful and ensure their IIPPs and HIPPs adequately address warehouse safety and the hazards associated with heat in such facilities and other indoor workplaces.
* Hallie Aylesworth, summer associate in the firm’s Del Mar office, contributed to this article
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FOOTNOTES
[1] https://www.osha.gov/stateplans
[2] https://www.dir.ca.gov/oshsb/Indoor-Heat.html
[3] https://www.dir.ca.gov/oshsb/documents/Indoor-Heat-ISOR.pdf
[4] https://calmatters.org/california-divide/2023/05/cal-osha-rules/
