Standards Board Approves Indoor Heat Illness Standard Despite Withdrawn Regulatory Process Approval

Bryan Little, Farm Employers Labor Service

March 24, 2024

On March 21, the Cal/OSHA Standards Board opened its meeting with an announcement from Board Chair Dave Thomas that the state Department of Finance had withdrawn previously granted approval for the cost analysis portion of the Standardized Regulatory Impact Assessment required of all proposed regulations reasonably anticipated to entail economic impact in excess of $50 million.  Chair Thomas then announced the Board would not be considering the proposed regulation, causing the one-year regulatory proposal clock to run out at the end of March requiring the regulatory procedure for indoor heat to start over.

Several hours of public comment ensued, with Labor and worker advocates growing increasingly agitated until they shut down the meeting with a marching picket line through the meeting, chants and a bullhorn until they were removed by sheriff’s deputies.  During the disturbance, Chair Thomas adjourned the meeting.

After the disturbance was quelled, Chair Thomas resumed the meeting as though his ruling adjourning the meeting had been forgotten, and the Board undertook a discussion about what to do next about indoor heat illness.  Chair Thomas was particularly withering and pointed in his criticism of the Newsom Administration, the Department of Finance, and the Department of Corrections and Rehabilitation, who he said he had been told had objected to DOF’s approval of the SRIA over concerns about implementation costs and CDPR’s budgetary constraints (not surprising given the state’s current fiscal straights.) 

Reluctant to start over on a regulation, options including another meeting before the end of March, adopting the rejected regulation as an emergency regulation (which does not require a regulatory impact assessment) and simply passing the proposed regulation originally slated for consideration were all discussed.  In the end, the Board opted to pass the original proposed regulation in spite of it regulatory legal impediments.  After doing this, the Board took a few more minor ministerial actions and adjourned. 

It's unclear at this point what will be the fate of the indoor heat illness regulation; will it be implemented as the Standards Board approved it in spite of the lack of approvals required by the Administrative Procedures Act? If it is, it seems virtually certain to attract legal challenges on that basis alone.  If it is not permitted to proceed, will the Board attempt to pass it as an emergency regulation not requiring an impact assessment? Given that the regulation was originally mandated by legislation passed in 2016, can it possibly be an “emergency?” Doesn’t an emergency entail some actual urgency? Will the Legislature simply pass some version of the indoor heat illness regulation, as it recently did with the Workplace Violence Prevention Plan requirement?