By Hoorya R. Ahmad and Patrick D. Joyce

Seyfarth Synopsis: Effective July 17, 2023, employers with outdoor workers in the state of Washington will be required to follow revised heat illness prevention rules. The revised rules modify Washington’s long-standing 2008 rule and expand employees subject to the rule’s protection. Employers should review the required Washington State Accident Prevention Programs to ensure their programs contain all of the elements required by the revised heat illness prevention rule before July 17, 2023.

Washington has a long-standing Outdoor Heat Exposure rule, first implemented in July 2008, that only covers certain industries during limited portions of the year. In response to the extreme heat wave experienced in the Pacific Northwest in early summer of 2021, the Washington State Department of Labor & Industries (L&I) adopted a broader set of emergency temporary rules on July 9, 2021 to address extreme high heat procedures covering a larger group of employers, with requirements for preventative cool-down rest, shade, and mandatory cool-down rest periods at 100 degrees Fahrenheit. Last summer, in another effort to prevent and reduce heat-related illness and injury, L&I issued another emergency temporary rule, which was in effect between June 15, 2022 and September 29, 2022.

On June 27, 2023, L&I adopted updates to the existing Outdoor Heat Exposure rules, which will become permanent as of July 17, 2023. The updates are presented as a response to rising temperatures in Washington State, which have resulted in an increase in heat-related injuries in outdoor workers. L&I aims to protect outdoor workers by requiring employers to implement several detailed measures such as: access to cool drinking water; cooling areas; communication tools and observation of employees, including buddy systems to help detect and respond to over-heating; and requiring employees to self-monitor and take mandatory cool-down breaks.

The revised rules apply year-round to all employers with employees performing work in an outdoor environment, with trigger temperatures of 52 and 80 degrees Fahrenheit depending on the type of clothing worn by the employee.

Key Additions, Changes, and Clarification to the “New” Permanent Heat Rules

  • The rules apply to all outdoor workers when exposed to outdoor heat year-round and not just May – September, as with the prior version of the Outdoor Heat Exposure rule.
  • Outdoor temperatures action levels are reduced from 89°F:
    • 52° Fahrenheit for employees wearing non-breathable clothes including vapor barrier clothing or PPE such as chemical resistant suits; and
    • 80° Fahrenheit for all other clothing
  • New and revised defined terms:
    • Broadens definition of “acclimatization”, referring to the body’s temporary adaptation to work in heat that occurs as a person is exposed to it over a period of 7-14 days. Acclimatization can be lost after 7 consecutive days away from work in the heat.
    • Adds definition of “buddy system”- where individuals are paired or teamed up into work groups so each employee can be observed by at least one other member to monitor and report signs and symptoms of heat-related illness.
    • Adds definition for “Risk factors for heat-related illness” to include environmental factors such as air temperature, relative humidity, air movement, radiant heat from the sun and other sources; workload and work duration; PPE and clothing worn by the employees; and personal factors such as age, medications, physical fitness, and pregnancy.
    • Adds definition of “Shade” to mean “[a] blockage of direct sunlight.” Shade may be provided by natural or artificial means. Shade is not adequate when heat in the shaded area defeats the purpose of shade, which is to allow the body to cool.
  • Increased employer and employee responsibilities:
    • An outdoor heat exposures safety program must be included in the employer’s written accident prevention program in a language that the employees understands. The outdoor heat exposure safety program must include at a minimum:
      • procedures for providing sufficiently cool drinking water;
      • shade or other sufficient means to reduce body temperature;
      • emergency response procedures for employees demonstrating signs or symptoms of heat-related illness;
      • acclimatization methods and procedures;
      • high heat procedures; and
      • the specific method used by the employer to closely observe for signs and symptoms for heat-related illness.
    • Employers must utilize mandatory preventative cool-down rest periods when employees begin to feel overheated. Must be paid unless taken during an unpaid meal break.
    • Employers must acclimatize all employees not acclimatized to the heat by closely observing them for 14 consecutive days, including new employees, those returning from absences of greater than 7 days, and all workers during a “heat wave.” Close observation is defined as regular communication with employees working alone, such as by radio, cellphone, a mandatory buddy system, or other effective means of observation. Heat wave is defined as any day in which the predicted high temperature for the day will be at least the trigger temperature for heat protection measures (80°F or 52°F) and at least 10 degrees Fahrenheit higher than the average high daily temperature in the preceding five days.
    • Access to shade. Employers must provide employees one or more areas of shade close to working area that is large enough to accommodate all employees during a meal or rest period.
    • Drinking water must be suitably cool in temperature, and there must be sufficient quantities for each worker to drink.
  • High heat procedures. Mandatory 10-minute cool-down rest period every two hours when temperatures exceed 90 degrees Fahrenheit, and 15 minutes every hour when temperatures are at or above 100 degrees Fahrenheit. Cool-down periods must be paid unless taken during an unpaid meal break. Employers must closely observe employees for signs and symptoms of heat-related illness at and above 90 degrees Fahrenheit.
    • Emergency response operations are excluded from mandatory cool-down rest periods when aiding firefighting, protecting public health and safety, or restoring or maintaining critical infrastructure at risk; but must be permitted a cool-down period if needed.
  • Responding to signs and symptoms of heat-related illness. Employers must ensure effective means of communication so that employees at the work site and their supervisors can contact each other to report signs and symptoms of heat-related illness and get medical attention when necessary. Cellular devices for this purpose may be used only if reception in the area is reliable.
  • Information and training. Employees and supervisors must be trained on appropriate first-aid and emergency response procedures prior to performing outdoor work when occupational exposure to heat might occur, and at least annually after the initial training.
    • Employees must receive “effective training” on the following topics: environmental factors and other work conditions (such as workload, work duration, PPE) that contribute to the risk of heat-related illness; general awareness of personal factors that may increase susceptibility to heat-related illness such as physical fitness, medical conditions, alcohol use, pregnancy, and previous heat-related illness.
    • Explain to employees the concept of acclimatization and the importance of frequent cool-down rest periods; gradual increase of work duration in the heat; mandatory cool-down rest periods when outdoor temperatures reach or exceed 90 degrees Fahrenheit; the employers procedures for providing shade or other sufficient means to reduce body temperature, including location of such means and how the employee can access them; and the employer’s procedures for close observation of employees for signs and symptoms of heat-related illness.
    • Supervisor training must include the importance of considering the use of engineering or administrative controls such as air-conditioning and scheduling work during the cooler hours of the day in order to reduce employees’ exposure to heat.

One of the most significant change in the revised rule is that the rule now applies year round. In addition, employers must draft a heat exposure safety program before July 17, 2023, take steps to quickly provide training to supervisors and employees on its heat-prevention and response plan and update its written literature to include those response plans. Furthermore, after the initial training provided to employees and supervisors, annual training is required of supervisors.

Because of the urgency with which L&I adopted the rules, making them effective less than 30 days from adoption, employers would be wise to work with outside counsel and ensure that the newly-required heat exposure safety program, included within the mandatory Accident Prevention Program, complies with this revised rule.