By Jeanne Kuang | CalMatters
After sorting and loading packages through a 100-plus-degree heat wave at an Inland Empire Amazon air freight hub last July, workers and their advocates called California’s workplace safety agency to complain of unsafe conditions.
Cal/OSHA inspectors came out, and in a citation issued in January and announced this week, agreed with the workers: The online retail giant hadn’t done enough to address the heat for those working outside on the tarmac and had committed “serious” safety violations.
But workers didn’t get all the accountability they wanted.
Cal/OSHA dismissed nearly half their complaints — the ones alleging hot working conditions inside the warehouses. One possible reason: While California requires employers to reduce the risks of heat illness for outdoor workers, a comparable rule still isn’t on the books for indoor workers. And though state lawmakers ordered one in 2016 and set a 2019 deadline, it won’t be until next month when the state is finally expected to adopt a rule, to go into effect by the summer.
Excessive heat can cause nausea, vomiting, fainting and, in the most extreme cases, heat stroke leading to organ damage or death. In California, seven workers died from indoor heat from 2010 through 2017. In recent years, summer temperatures across southern California have broken historical records.
Amazon disputes the citation, and said it is appealing. It says that its San Bernardino air hub is air-conditioned, workers are encouraged to take breaks and that the company generally supports an indoor heat standard. It declined to comment on the state’s proposed rule. “We’ve seen the positive impacts of an effective heat mitigation program and believe all employers should be held to the same standard as we have proactively set,” company spokesperson Maureen Lynch Vogel wrote in an email.
To understand why a state rule has taken so long — even with lives at stake — is to take a journey through the byzantine world of administrative rulemaking in California.
A CalMatters review found:
- The 2016 law gave Cal/OSHA the option to adopt an indoor heat rule targeted at certain industries, but the agency wrote a broad one, prompting immediate pushback from a wide swath of employers;
- The Cal/OSHA advisory committee took employer and worker input and drafted a rule by the 2019 deadline, but it had to be submitted it to a little-known state workplace safety board for approval;
- During the pandemic, that safety board, part of the understaffed Department of Industrial Relations, was focused on emergency COVID-19 prevention rules;
- Before any vote could happen, the rule triggered a requirement in state law for an economic impact study;
- The state hired two different contractors to complete the economic assessment, and didn’t submit the final study until September 2021;
- After another year-plus of “detailed consultation” with other agencies, the safety board started its own rulemaking process in March 2023, but there have been four public comment periods since — more than most other recent regulations.
The Occupational Safety and Health Standards Board is expected to give final approval to the rule at its March 21 meeting, making California the third state with indoor heat protections.
Approval would come at the last possible minute: If there are further amendments and the vote doesn’t happen in March, the workplace safety board’s formal rulemaking process — which can take as long as a year — would have to start over.
“There’s a lot of push and pull between the employers’ and the workers’ side on this,” said Shane Gusman, a lobbyist who represented the Teamsters and other unions during the discussions. “It’s just something at this point in time we need to get in place. Summer’s coming.”
What’s in the indoor heat rule
The rule would require employers statewide to provide cooling areas and monitor workers who take cooling breaks for signs of heat illness when indoor workplaces hit 82 degrees.
If the temperature hits 87, or if workers wear restrictive clothing or work near a heat source, businesses would have to take further steps: First, to cool the worksite, if feasible. If not, employers would have to adjust work schedules, slow production, allow more breaks or rotate workers through assignments. As a last resort, they’d have to provide personal fans or cooling vests.
Industries expected to be most affected include warehouses, manufacturing and restaurants.
Neither advocates for workers nor employers are satisfied with the proposed rule. Workers want to require lower temperatures. Employers say the rule is too complicated, conflicts with the outdoor heat rule and is too broad to apply to vastly different indoor workplaces.
“The hard part about this regulation for California employers has been trying to find language that works equally well for an office building, a restaurant kitchen and a storage shed,” said Rob Moutrie, policy advocate for the California Chamber of Commerce.
Workers’ advocates say their top priority now is to get a rule on the books without further delay.
Without the indoor rule, workers complaining of heat at the Amazon warehouse last summer asked Cal/OSHA to inspect inside under a general rule requiring safe workplaces.
“The humidity inside the building was unbearable,” said former air hub employee Sara Fee, who helped file the complaint along with the San Bernardino-based Warehouse Worker Resource Center, where she now works. “You felt heavy in your chest, like it was hard to breathe.”
Hauling packages in and out of truck trailers was the hottest task. The metal containers sitting in the sun easily climbed above 100 degrees, Fee said, and even with air conditioners in the warehouse and fans near the trucks, the trailers “feel like a sauna” with workers in “constant motion.”
Inland Empire Amazon Workers United founder Sara Fee in front of the Warehouse Worker Resource Center in Ontario on Feb 13, 2024.Elisa Ferrari for CalMatters
“The heat that comes from the trailer almost knocks you over,” Fee said. “We had fans you could turn around and face into the trailers but you might as well be standing there with a straw in your mouth blowing air.”
The agency found no evidence of safety violations indoors, according to the citation.
Amazon is appealing the outdoor citations, and disputed claims about hot working conditions both inside and outside the 660,000-square-foot KSBD facility at San Bernardino International Airport, where about 1,400 workers carry cargo off arriving planes, sort them with the help of large robots and load them onto truck trailers.
Amazon spokesperson Lynch Vogel said the facility is fully air-conditioned — unlike many others in the distribution industry — and never hotter than 78 degrees inside. “There’s simply no truth to claims that KSBD workers are working in extreme temperatures indoors,” she wrote in a statement.
But Tim Shadix, legal director of the Warehouse Worker Resource Center, said he suspects the lack of an indoor heat rule made it more difficult to issue violations inside the warehouse. The prior summer, workers wearing thermometers inside the warehouse and truck trailers reported temperatures of between 75 and 96 degrees, and between 80 and 121 on the tarmac — a report that Amazon also has disputed.
“Having a clear standard would give more clear indication to employers to take more proactive steps, and if there’s still a need for citations, having explicit standards that are required to be followed will make that process a clearer path for Cal/OSHA,” Shadix said.
A long, hot history
Though recent heat waves have made the risks of hot workplaces top-of-mind for policymakers, workers have been pushing for protections for decades.
Workers in factories and even libraries in Southern California were petitioning the state for a general heat standard — indoors and outdoors — as early as the 1980s, said Kevin Riley, director of the Labor Occupational Safety and Health Program at UCLA.
“The library branches didn’t have air conditioning yet, and (librarians) got sick in the stacks,” he said. “Then in the subsequent decade or two, a lot of those spaces became air-conditioned.”
In 2005, the heat-related deaths of four farmworkers prompted California to adopt an outdoor heat illness prevention rule, which requires shade and water when the temperature hits 80 degrees and, for farming and construction work, additional breaks and monitoring when it hits 95. It was the first such rule in the nation; a 2021 study suggested it has helped to decrease workplace injuries on hot days.
Other workers, such as those in the newly booming warehouses of the High Desert and Inland Empire, took up the cause of an indoor heat rule. In 2011, a union representing workers at a Lancaster warehouse secured heat protections in its contract with Rite Aid, but union president Luisa Gratz said as the climate gets hotter, workers need stronger protections in state law, too.
An Amazon same-day delivery fulfillment shipping center is in Woodland Park, New Jersey, on Monday, December 18, 2023.AP Photo/Ted Shaffrey
Last year, the Teamsters secured a contract with UPS that averted a nationwide strike and that, besides higher pay, included air conditioning in delivery trucks for drivers and additional fans, ice machines and water fountains in buildings.
In California, 20 workers died from heat illness between 2010 and 2017, seven of them because of indoor heat, according to the Rand Corp., which analyzed the state’s proposed indoor heat rules. Workers compensation data analyzed by Cal/OSHA show between 2010 and 2018 — the hottest decade on record — an average of 185 workers a year claimed injuries from indoor heat, a figure that was rising, and nearly 20% of all workplace heat injuries.
The agency only recently began separately counting safety complaints that mention indoor heat; it received 194 such complaints in 2022 and 549 last year.
Those most likely to experience injuries are younger and male, a likely indication of who is working in industries with the most heat exposure, said Amy Heinzerling, chief of the Emerging Workplace Hazards Unit at the California Department of Public Health. Nearly 10% were injured within the first two weeks on the job, Heinzerling found in another study, highlighting the importance of “gradually increasing worker exposure to hot conditions and really keeping a close eye on them for signs of heat illness.”
In 2016, former state Sen. Connie Leyva, a labor-friendly Democrat from the Inland Empire, introduced the bill for Cal/OSHA to develop an indoor heat rule. It was a direct response to reports of workers falling ill from heat in warehouses concentrated in her district, she said.
She initially wanted the rule to take effect in 2017 and said in a recent interview she “had no idea that it would take this long.”
“I did expect it to happen right away,” she said.
Delays in rulemaking
When Cal/OSHA’s indoor heat advisory committee began meeting to draft the rule in February 2017, a wide range of employers pushed back immediately, some questioning the need for an indoor rule at all.
The committee met over the next two years, going back and forth on the temperature and whether to consider other factors such as workers’ activity level and humidity levels in the workplace. Worker advocates wanted an across-the-board 80-degree threshold, while some employers called for stricter protections to kick in only at 95 degrees.
In early 2019, the agency had a draft proposal ready for the workplace safety board to kick off formal rulemaking — a process that can be as short as a few months and as long as one year.
That’s where the delays really began.
Because the rule would have at least $50 million in economic impact, a 2011 state law required a study to be submitted to the Department of Finance. The requirement has irked labor advocates, who argue workplace regulations are already subject to vetting. The Cal/OSHA advisory committee on indoor heat met three times and revised a draft rule seven times before submitting it to the safety board, which also takes comments.
Leyva, backed by the California Labor Federation, tried in 2017 and 2021 to exempt Cal/OSHA from conducting economic impact studies, saying they slow down regulations that are needed for workers’ safety. Both times the bill cleared the Senate, then died. Leyva blamed business interests hostile to new regulations.
“All the people who were always talking about streamlining things and saying, ‘There’s too much regulation, there’s too many hoops to jump through,’” she said, “We propose a bill that’s going to streamline it and all of a sudden, ‘Oh, no, we can’t do that.’”
In February 2020, the Department of Industrial Relations, which houses Cal/OSHA and the occupational safety board, submitted a draft study to the Department of Finance. While that study was underway, the department put out a second contract. It submitted a final study a year and a half later, using the new contractor.
Neither department explained why two contractors were needed. The final economic impact study conducted by the Rand Corp. estimated that the proposed rule would cost employers statewide $215 million in the first year and about $88 million annually afterward, mostly for employers to install AC or fans or provide cool-down areas. The analysis also predicted the rule would cut indoor workplace heat injuries by 40% by 2030.
Another year passed. Asked for an explanation for the delay, the Department of Industrial Relations said only that it was talking to other agencies, including the governor’s office, between late 2021 and early 2023. The department responded in a statement Wednesday after weeks of inquiries. It declined to make a representative of the safety board available for an interview.
“This was a complex rulemaking that required detailed consultation with subject matter experts at various points, which led to further edits and refinements to the documents,” a department spokesperson said.
In November 2022, then-Assembly Labor chairperson Ash Kalra, a San Jose Demorat, asked an embattled and understaffed Cal/OSHA about why the rule was taking so long. Director Jeff Killip, who left his post in January, replied that the pandemic had “diverted our focus,” and the standards board would soon be ready to begin formal rulemaking.
The board, which is appointed by the governor, kicked off that process in March 2023. Its vote of approval, along with the Department of Finance’s approval of the economic impact documents, are among the last steps still needed.
During a public hearing last May, workers pleaded with the board to adopt the rule without further delay. But for the past year, the rule has undergone three more revisions requiring a new public comment period each time, the last of which ended in January.
In the past year employers have pushed to exempt businesses in which workers are only inside a truck, trailer or storage shed briefly. Business groups such as the California Farm Bureau remain upset that the latest exemption doesn’t apply if it’s hotter than 95 degrees.
“The temperature in those spaces is going to exceed 95 degrees for much of the year,” said the bureau’s director of labor affairs, Bryan Little. “It’s just not going to be very useful.”
The number of revisions is unusual compared to the dozens of other workplace safety rules approved since 2017. Of those, which ranged from regulations narrowly targeted at a single industry to a wider COVID prevention standard, only one other rule — on protective equipment for firefighters — has undergone as many board revisions as indoor heat.
Workers’ groups are concerned about how the rule will be enforced, with Cal/OSHA currently without a director and suffering vacancy rates of one-third, and the rule only allowing workers’ representatives into unionized worksites.
But Shadix of the warehouse workers’ center said he just wants to see a rule adopted.
“The clock was ticking on the deadline and of course the clock is ticking every day for workers in terms of exposure to heat illness,” he said. “We would like to see it in place for the summer.”
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