California Bill Would Require Employees in Outdoor Industries to Be Certified in Heat Illness Prevention

Quick Hits

• On February 8, 2024, Assembly Member Arambula introduced AB 2264, legislation to require heat illness prevention certification.
• AB 2264 would require employees to obtain heat illness prevention certification from Cal/OSHA and maintain the certification during employment, starting on July 1, 2028.
• The bill would also require an employer to “consider the time that it takes for an employee to complete the [heat illness prevention certification] training course and the examination as compensable ‘hours worked,’” for which the employer must pay the employee, together with “necessary expenditures or losses associated with the employee obtaining a heat illness prevention certification.”
• AB 2264 would prohibit the conditioning of employment on an applicant’s or employee’s having an existing, valid certification, and it would require an employer to “relieve an employee of all other work duties while the employee is taking the training course and examination.”

Background

California already regulates workplace hazards associated with outdoor heat. But heat waves in recent years have prompted California lawmakers and regulators to consider additional measures—including the pending indoor heat illness prevention regulation—to protect workers from heat illness. In line with this trend, Assembly Member Arambula introduced AB 2264 to ensure that employees have adequate training and understanding with regard to how to prevent and avoid heat illness in outdoor places of employment.

Proposed Measures

If enacted, AB 2264 would add Section 6721.5 to the California Labor Code. Starting on July 1, 2028, employees would be required to obtain heat illness prevention certification within thirty days after their hiring dates and maintain their certification for the duration of employment in industries subject to California’s outdoor heat illness prevention regulation, Section 3395 of Title 8 of the California Code of Regulations. (Industries subject to all provisions of the standard include agriculture; construction; landscaping; oil and gas extraction; and transportation or delivery of agricultural products, construction materials, or other heavy materials.)

The certification would be valid for three years, even if employees changed employers during that period. Cal/OSHA would be required to develop the certification process and make it available on its website by July 1, 2028. In addition, Cal/OSHA would be required to offer the certification process in English and in the five most used non-English languages in California.

The certification would include training on the elements of heat illness prevention practices described in Section 3395 of Title 8, and on the recommendations of “nationally organized heat safety … organizations.” Further, employees would be required to take a test with at least forty questions on heat illness prevention and pass it with a 70 percent score or higher. The certification process, including the course instruction and exam, would take approximately one day to complete. Cal/OSHA would be permitted to offer the certification process in-person or online.

AB 2264 would require that employers (1) include the certification process as part of their on-the-job training for employees, (2) allow employees to participate in the certification process during normal working hours, and (3) pay for the employees’ certifications. Employers would be required to maintain records to show each employee had a valid certification and provide such records to local enforcement officials upon request. The time that employees took to complete the certification process would be considered compensable hours worked, for which employers would be required to pay. Employers would also be required to pay employees for the necessary expenditures or losses associated with their obtaining the certification. Employers would be required to relieve employees of all other work duties while employees take the training course and exam. Finally, employers would be prohibited from conditioning employment on an applicant’s or employee’s having an existing, valid certification.

Ogletree Deakins will continue to monitor developments with respect to the pending changes to California’s occupational safety and health laws and regulations and will provide updates on the firm’s California and Workplace Safety and Health blogs as additional information becomes available.

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