WSR 23-07-123

PROPOSED RULES

DEPARTMENT OF

LABOR AND INDUSTRIES

[Filed March 21, 2023, 1:01 p.m.]

Original Notice.

Preproposal statement of inquiry was filed as WSR 21-17-135.

Title of Rule and Other Identifying Information: Outdoor ambient heat exposures in all industries under WAC 296-62-095 through 296-62-09560, General occupational health standards—Outdoor heat exposure, and 296-307-097 through 296-307-09760, Safety standards for agriculture—Outdoor heat exposure.

Hearing Location(s): On April 25, 2023, at 10:00 a.m., at SpringHill Suites by Marriott, 4040 Northwest Avenue, Bellingham, WA 98226; on April 26, 2023, at 10:00 a.m., at SpringHill Suites by Marriott, 7048 West Grandridge Boulevard, Kennewick, WA 99336; on April 27, 2023, at 10:00 a.m., at Hampton Inn by Hilton, 2010 South Assembly Road, Spokane, WA 99224; on May 2, 2023, at 10:00 a.m., at Department of Labor and Industries (L&I), 12806 Gateway Drive South, Tukwila, WA 98168; on May 3, 2023, at 10:00 a.m., at Clark College at Columbia Tech Center, 18700 S.E. Mill Plain Boulevard, Vancouver, WA 98683; or on May 4, 2023, at 2:00 p.m., virtual and telephonic hearing. Join electronically https://lni-wa-gov.zoom.us/j/89566996553?pwd=QzNGMlhTT3V3RGtFTGhMS2tYYlo5UT09; or join by phone (audio only) 1-253-215-8782, Meeting ID 895 6699 6553, Passcode 678052798. A prehearing overview will occur one hour prior to the start of each public hearing. The hearings will begin at the indicated times and will continue until all oral comments are received.

Date of Intended Adoption: June 15, 2023.

Submit Written Comments to: Carmyn Shute, Administrative Regulations Analyst, L&I, Division of Occupational Safety and Health (DOSH), P.O. Box 44620, Olympia, WA 98504-4620, email Carmyn.Shute@Lni.wa.gov, fax 360-902-5619, by 5:00 p.m., May 11, 2023.

Assistance for Persons with Disabilities: Contact Carmyn Shute, administrative regulations analyst, phone 360-870-4525, fax 360-902-5619, email Carmyn.Shute@Lni.wa.gov, by 5:00 p.m., April 20, 2023.

Purpose of the Proposal and Its Anticipated Effects, Including Any Changes in Existing Rules: On June 28, 2021, L&I received a petition for rule making requesting changes to L&I's rules to include more specific requirements to prevent heat-related illness and injury. The petition for rule making was accepted recognizing the need to reexamine the current rules, especially in light of information suggesting the occurrence of heat illnesses below the current trigger temperatures and the increasing temperatures experienced in our state since the rule was first established in 2008.

WAC 296-62-09510 and 296-307-09710, outdoor heat exposure. Sets scope of the rule to apply to all outdoor work environments year-round rather than May through September. Removed redundant WAC citations.

WAC 296-62-09520 and 296-307-09720, definitions. All definitions were numerated to aid in cross-referencing.

WAC 296-62-09530 and 296-307-09730, employer and employee responsibility. Adds prescriptive requirements for the outdoor heat exposure safety plan. Adds requirement for preventative cool-down rest periods when employees begin to feel overheated. Adds Table 1 with trigger temperatures of 52°F and 80°F depending on clothing worn and personal protective equipment used. Specifies that employees must be allowed and encouraged to take a preventative cool-down rest in the shade or using another means provided by the employer to reduce body temperature when they feel the need to do so to protect themselves from overheating. Finally, adds employee requirement to take preventative cool-down rest periods when they begin to feel overheated.

WAC 296-62-09535 and 296-307-09735, access to shade (new). Adds requirement to provide one or more areas of shade for employees that is large enough to accommodate all employees during a meal or rest period. The provided shade must also be as close to areas where employees are working. The rule also provides alternatives employers may use in lieu of shade.

WAC 296-62-09540 and 296-307-09740, drinking water. Adds clarification that drinking water must be suitably cool in temperature which has been standard under DOSH Directive 10.15.

WAC 296-62-09545 and 296-307-09745, acclimatization (new). Adds requirement for observation for up to 14 days for newly assigned employees to ensure employees become accustom to working at various temperatures. Adds definition of "heat wave" and adds requirement for close observation during the heat wave. Provides a "Note" that employers may consider additional acclimatization procedures recommended by the National Institute for Occupational Safety and Health.

WAC 296-62-09547 and 296-307-09747, high heat procedures (new). Adds requirement for rest periods when temperatures exceed 90°F or 100°F according to new Table 2. Adds requirement to closely observe employees for signs and symptoms of heat-related illness at and above 90°F.

WAC 296-62-09550 and 296-307-09750, responding to signs and symptoms of heat-related illness. Adds requirement for employers to ensure there is means for effective communication between employees and supervisors.

WAC 296-62-09560 and 296-307-09760, information and training. Adds requirement for training to be effective and performed prior to outdoor work when occupational exposure to heat might occur. Adds defined environmental factors and other work conditions that may contribute to heat-related illness. Adds physical fitness, previous heat-related illness and pregnancy as conditions that may contribute to heat-related illness. Removed caffeine use and nicotine use as contributors to heat-related illness.

Adds the importance of acclimatization and considerations for cool-down rest periods, gradual increase of work in the heat and importance that employees are unable to build tolerance to working in the heat. Adds the importance of taking preventative cool-down rest periods, and mandatory rest periods when temperatures exceed 90°F. Adds training requirement for procedures for shade or other means to reduce body temperature, and employer's procedures for close observation of employees. Finally, adds the importance of considering the use of engineering or administrative controls to reduce exposure.

Reasons Supporting Proposal: L&I filed emergency rules related to outdoor ambient heat in the summer of 2021 and 2022 to protect outdoor workers from heat-related illnesses due to outdoor heat exposure. The current rules do not affirmatively address preventative measures to avoid overheating other than access to drinking water. The hazards of heat are well documented and research suggests the occurrence of heat-related illnesses below the current trigger temperatures. Research also documents increased temperatures in Washington since the rule was first established. L&I has determined that rule making is necessary for the preservation of worker health and safety.

Statutory Authority for Adoption: RCW 49.17.010, 49.17.040, 49.17.050, and 49.17.060.

Statute Being Implemented: Chapter 49.17 RCW.

Rule is not necessitated by federal law, federal or state court decision.

Agency Comments or Recommendations, if any, as to Statutory Language, Implementation, Enforcement, and Fiscal Matters: No additional comments.

Name of Proponent: L&I, governmental.

Name of Agency Personnel Responsible for Drafting: Teri Neely, Tumwater, Washington, 360-902-6652; Implementation and Enforcement: Craig Blackwood, Tumwater, Washington, 360-902-5828.

A school district fiscal impact statement is not required under RCW 28A.305.135.

A cost-benefit analysis is required under RCW 34.05.328. A preliminary cost-benefit analysis may be obtained by contacting Carmyn Shute, Administrative Regulations Analyst, L&I, DOSH, P.O. Box 44620, Olympia, WA 98504-4620, phone 360-870-4525, fax 360-902-5619, email Carmyn.Shute@Lni.wa.gov.

This rule proposal, or portions of the proposal, is exempt from requirements of the Regulatory Fairness Act because the proposal:

Is exempt under RCW 19.85.025(3) as the rules are adopting or incorporating by reference without material change federal statutes or regulations, Washington state statutes, rules of other Washington state agencies, shoreline master programs other than those programs governing shorelines of statewide significance, or, as referenced by Washington state law, national consensus codes that generally establish industry standards, if the material adopted or incorporated regulates the same subject matter and conduct as the adopting or incorporating rule; and rules only correct typographical errors, make address or name changes, or clarify language of a rule without changing its effect.

Scope of exemption for rule proposal:

Is partially exempt:

Explanation of partial exemptions:

The proposed rule does impose more-than-minor costs on businesses.

Small Business Economic Impact Statement

1. Describe the rule, including: A brief history of the issue; an explanation of why the rule is needed; and a brief description of the amendments that would impose new or additional costs on affected businesses, including small businesses. During the significant and unprecedented 2021 heat wave, L&I received a petition requesting the department adopt emergency rules and amend the permanent rules to address preventative measures when there is extreme high heat. L&I accepted the petition, recognizing the need to reexamine the agency's 2008 outdoor heat exposure rules, especially in light of information suggesting the occurrence of heat-related illnesses below the current temperature action levels and the increasing temperatures experienced in Washington state since the rule was first established. Emergency rules were adopted in 2021 and 2022. These proposed rules address minimum requirements to prevent heat-related illness and reduce traumatic injuries associated with heat exposure. The proposed rules:

2. Identify which businesses are required to comply with the rule using the North American Industry Classification System (NAICS). The proposed rule applies to all employers with employees who are exposed to outdoor heat environments. As discussed in Section 1.3.1 of the cost-benefit analysis (CBA), L&I used outdoor exposure data from the Bureau of Labor Statistics (BLS) Occupational Requirements Survey (ORS) to determine the number of workers affected. Using the number of affected workers in each occupation from Section 1.3.1 of the CBA for this rule making, and their employment by each industry, L&I was able to estimate the number of businesses in each industry that are likely affected by this proposed rule.1 The share and number of affected businesses in each industry are presented in Table 2.1.

3.1 Cost of employer and employee responsibility: The amended subsections under WAC 296-62-09530 and 296-307-09730 require employers with exposed employees to (a) address their outdoor heat exposure safety program (OHESP) in a language that employees understand; (b) ensure a minimum set of six elements are included in their OHESP; (c) ensure a copy of the OHESP is made available to employees and their authorized representatives; and (d) encourage and allow employees to take paid preventative cool-down rest periods when needed. We assumed that employers would use digital methods to provide electronic copies of the OHESP to employees and their authorized representatives. Employers can easily provide digital copies to any common electronic device such as a mobile phone or tablet. In addition, we assume that employers would not incur any cost encouraging employees to take cool-down rest periods.

The costs estimated for the new requirements are administrative time needed to update the OHESP with the minimum required elements and cost of translating the updated OHESP document. The proposed amendment affects all employers of outdoor workers exposed at or above the temperature thresholds specified in this proposed rule. Table 2.1 shows the number of affected businesses in each industry.

L&I makes available on its website a template of the OHESP document that includes the new minimum required elements, which employers could use to update their own OHESP.2 As discussed in Section 2.1.1 of the CBA, the cost factors and calculation for this requirement are listed below in Table 3.1.

The proposed rule also requires that employers provide the OHESP in a language understood by the employee. The distribution of workers who do not adequately understand English across all impacted industries is not known. While the Agriculture, Forestry, Fishing and Hunting, and the Construction sectors do have a significant number of workers who do not adequately understand English and would need the OHESP translated into one or more languages, not all businesses in these sectors will need translation services. For the purposes of this analysis, we assumed all businesses in these two sectors, about 52 percent of total impacted businesses, would need translation to address this requirement for employers across all industries. As discussed in Section 2.1.1 of the CBA, the cost factors and total costs for this requirement are listed below in Table 3.2.

Given the cost of updating the OHESP and translating the documents, L&I estimates this proposed requirement will impose approximately a cost of $127,670 to $331,432 on impacted businesses each year (see Table 3.3).

3.2 Access to shade: The proposed rules under WAC 296-62-09535 and 296-307-09735 require employers to (1) provide and maintain one or more areas of ventilated or cooled shade as close as possible to the worksite at all times; (2) ensure that this shade be large enough to accommodate employees on a meal or rest break so they can sit in a normal posture; and (3) use other equally or more effective means to reduce body temperatures in lieu of shade. This could include misting stations, cooling vests, or air conditioned areas, among others.

This is a new requirement which would impose a cost on impacted businesses. To estimate this cost, L&I relied upon the following assumptions:

As discussed in Section 2.1.2 of the CBA, the cost factors and total costs for this requirement are listed below in Table 3.4.

The proposed rule also allows employers to use other effective body temperature reducing options, such as misting vests. Based on the average cost of $10.89 to $21.67 per unit and the number of units needed for all impacted workers, L&I estimates the total cost of this option to be $1,390,077 to $2,766,240 over the entire period, or $183,289 to $364,743 per year (see Table 3.5).

Considering a mix of the options available for employers to comply with this proposed section, L&I estimates a total cost of $1,390,077 to $3,195,528 over the entire period or $183,289 to $401,354 per year to impacted businesses (see Table 3.6).

3.3 Drinking water: Under existing WAC 296-62-09540 and 296-307-09740, employers are required to provide and keep workers hydrated with drinking water of at least one quart per hour for each employee, but this requirement only applies to the period of May through September. While the requirements for drinking water have not changed, the change in temperature action levels and the change in the scope of the rule to all year have implications to the drinking water requirement. First, drinking water now also needs to be provided for the hours and days between October and April when the temperature is at or above certain thresholds for the affected workers. Secondly, the trigger temperature for providing drinking water for workers between May and September is now lowered from 89°F to 80°F, which means water needs to be provided for more hours and days during these months as well.

In order to estimate the cost of these proposed changes, L&I needs to determine the amount of drinking water to be provided for the new period of October to April when the temperature is at or above 52°F for workers who wear nonbreathable clothing and when the temperature is at or above 80°F for all other workers. L&I then needs to determine the amount of drinking water that would need to be provided between 80°F to 89°F for May through September.

As discussed in Section 2.1.3 of the CBA, L&I determines that the cost of this proposed requirement would be approximately $2.5 million to $8.0 million each year over a nine-year period (see Table 3.7).

3.4 Acclimatization: WAC 296-62-09545 and 296-307-09745 are new sections which require employers to closely observe employees for signs and symptoms of heat-related illness for (1) a total of 14 days who are (a) newly assigned to outdoor work at the trigger temperatures, and (b) who are returning to work after a seven-day absence, and exposed to outdoor heat at the trigger temperatures; and (2) during a heat wave, as defined by the rule, through a mix of either (a) regular communication,6 (b) a mandatory buddy system, or (c) some other effective means.

These requirements are new and would impose a cost upon impacted businesses. To determine the probable total cost, L&I analyzed the cost of each of the requirements using the first two options – regular communication and the mandatory buddy system. L&I did not analyze cost of a third option due to data and time limitations. L&I relies upon the following major assumptions in the analysis of this section:

Fourteen-day observation of newly assigned employees: To estimate the cost of observing newly assigned employees, L&I needs to determine the number of newly assigned workers. Using the employment growth rates for new workers entering the workforce from the employment security department,7 the total number of newly assigned workers subject to this rule are estimated at 45,131 for the next eight years, or 5,641 each year.8

As discussed in Section 2.1.4 of the CBA, the costs factors and total costs for this requirement are listed below in Table 3.8.

Fourteen-day observation of return-to-work employees: To estimate the cost of workers returning to work after a seven-day absence, L&I needs to determine the number of these workers.9 To estimate this number, L&I relies upon the average national absentee rate of 3.2 percent. As discussed in Chapter 2.1.4 of the CBA, the costs factors and total costs for this requirement are listed below in Table 3.9.

Observation during a heat wave: The third requirement under these sections is for the observation of employees during a heat wave.10 Based on the definition of a heat wave for this rule, there are two temperature triggers at which a heatwave is assessed and during which employees exposed to outdoor heat must be observed for signs and symptoms of heat-related illnesses: 52°F and 80°F.

Examination of historical data over the 10-year period 2011-2020 shows that heat waves satisfying this definition would have occurred for approximately 14 business days and seven business days each year at 52°F and 80°F, respectively. In assessing this requirement, L&I estimated the cost when utilizing (1) the regular communications (along with any equipment cost), and (2) the mandatory buddy system.

As discussed in Section 2.1.4 of the CBA, the cost factors and total costs for this requirement are listed below in Table 3.10.

Summing the cost of the individual requirements from these proposed sections related to acclimatization, L&I estimates that the total cost is $14,941,650 to $14,994,852 per year on the impacted businesses.

3.5 High heat procedures: WAC 296-62-09547 and 296-307-09747 require employers to implement high-heat procedures when the temperature is at or above 90°F unless they can utilize engineering or administrative controls, such as changing work schedules or the use of air-conditioning, to lower the employees' exposure to below 90°F. In particular, these proposed sections have two main parts. First, employers must ensure employees take, at minimum, the mandatory cool-down rest periods of (1) 10 minutes every two hours when the temperature is 90°F - 100°F, and (2) 15 minutes every hour when the temperature is at least 100°F. Secondly, employers must closely observe employees for signs and symptoms of heat-related illness by implementing one or more of either (1) regular communication with employees working alone, (2) a mandatory buddy system, or (3) other effective means of observation. Consistent with the explanation in section 3.4 above, L&I only assesses the first two observation options for cost impact.

Mandatory cool-down rest period at 90°F: Analysis of weather data for the period of 2011-2020 shows that temperatures between 90°F to 100°F lasted on average 1.2 hours per day for an average of seven business days per year.11 L&I used the starting weighted average hour wage (plus benefits) of $47.05 for the base year and adjusted for wage inflation over future years. As discussed in Section 2.1.5 of the CBA, the costs factors and total costs for this requirement are listed below in Table 3.11.

Mandatory cool-down rest periods for 100°F temperatures: This rest period requires exposed employees to take a 15 minute break each hour when the temperature is at least 100°F or greater. Using the same historical weather data, the average number of hours per day when the temperature was at least 100°F was about 0.4 for an average of at least one business day. As discussed in Section 2.1.5 of the CBA, the cost factors and total costs for this requirement are listed below in Table 3.12.

Close observations at or above 90°F: As mentioned in the section introduction, employers with employees exposed to outdoor heat temperature of at least 90°F must closely observe these employers for heat-related illness using one or more of three options. To determine the likely cost of this requirement, L&I analyzed the first two options – regular communication and mandatory buddy system. Similar to the analysis above which required these options, L&I did not analyze the third option for cost given the wide variety of choices an employer could make.

As discussed in Section 2.1.5 of the CBA, the cost factors and total costs for this requirement are listed below in Table 3.13.

3.6 Information and training: WAC 296-62-09560 and 296-307-09760 require employees and supervisors to be trained prior to outdoor work where occupational exposure to heat may occur, and annually thereafter. Employees must be trained on acclimatization and the importance of taking preventative cool-down rest periods, among other topics. Supervisors must now be trained on the importance of considering the use of engineering or administrative controls in order to reduce employees' exposure to heat.

The updates to the employee and supervisor training section would have a cost implication to impacted businesses. First, employers would need to update their training material to include the new information to which employees and supervisors must be trained. While annual training is not a new requirement, the proposed amendments would add additional time to training and so add an administrative cost. As discussed in Section 2.1.6 of the CBA, the cost factors and total costs for this requirement are listed below in Tables 3.14, 3.15, and 3.16.

The total cost of the proposed information and training amendments would be approximately $4,326,229 - $6,657,314 each year.

3.7 Summary of Total Compliance Cost of Proposed Rule: Overall the proposed rule amendments are estimated to impose $40.7 million - $49.1 million of cost on all impacted businesses each year (see Table 3.17).

4. Determine whether or not the proposed rule will impose more-than-minor costs on businesses in an industry: As analyzed above, L&I estimates the total cost of compliance with the proposed rule to be $40.7 million to $49.1 million each year for all the affected businesses. Based on this cost range and the share of affected businesses in each industry estimated in Section 2 above (see Table 2.1), the average per-business cost of the proposed rule is in a range of $615 to $16,525 depending on the specific industry to which a business belongs. Comparing this per-business cost to the minor cost threshold of one percent of annual payroll for each industry12 shows this unit cost is far below the minor cost threshold for all industry except educational services (see Table 4.1). Overall, the average per-business cost is about 11 to 13 percent of the minor cost threshold.

5. If the proposed rule is likely to impose a disproportionate impact on small businesses, identify the steps taken to reduce the cost of the rule on small businesses: Only educational services exceeded the minor cost threshold. However, for educational services specifically and all industries impacted by the rule, reliable data are lacking to differentiate the average cost for small businesses from their larger counterparts. As such, L&I assumes there is a disproportionate impact on small businesses. L&I reviewed the list of methods for reducing the impact on small businesses under RCW 19.85.030 and is taking the following steps to reduce the costs of the rule on small businesses:

L&I has considered the other methods of reducing costs under RCW 19.85.030 and found them inapplicable:

6. Describe how small businesses were involved in the development of the proposed rule: As discussed in Section 1.2.4 of the CBA, L&I communicated on the rule-development process via DOSH electronic email distribution lists, L&I rules electronic email distributions lists, and on social media in English and Spanish. Small business employers and organizations representing small businesses were involved throughout these processes and L&I considered their feedback throughout the process. Rule development efforts included:

7. Identify the estimated number of jobs that will be created or lost as the result of compliance with the proposed rule: L&I does not anticipate that the compliance with proposed rules will lead to a significant number of job creations or cuts. Employers will be able to meet the proposed requirements using existing staff without new hires. Similarly, it is unlikely that employers would need to dismiss employees as a result of the proposed rule amendments.

A copy of the statement may be obtained by contacting Carmyn Shute, Administrative Regulations Analyst, L&I, DOSH, P.O. Box 44620, Olympia, WA 98504-4620, phone 360-870-4525, fax 360-902-5619, email Carmyn.Shute@Lni.wa.gov.

March 21, 2023

Joel Sacks

Director

OTS-4162.4

OTS-4164.3