Washington State Mandates Additional Protections For Outdoor Workers

Seyfarth Synopsis: In light of the record-breaking heat wave, Washington state announced new emergency rules to provide outdoor workers with additional protections from heat exposure. These rules update the existing Outdoor Heat Exposure mandates, and are in effect as of July 13, 2021.

On July 9, 2021, Washington announced new emergency rules to provide outdoor workers additional protections from heat exposure. The emergency rules amend existing rules that are in place annually from May through the end of September.

The new emergency rules update the existing to include the following protections:

When the temperature is at or above 100 degrees, employers must respond to the extreme heat by:

• Maintaining a shady area large enough to accommodate the number of employees on a meal break or rest break and that is either open to the air or has ventilation or cooling and does not adjoin a radiant heat source (such as machinery or a concrete structure), or providing another sufficient means for employees to cool down; and
• Ensuring workers have a cool-down rest period of at least 10 minutes every two hours. The preventative cool-down rest period required may be provided concurrently with any meal or rest period and must be paid unless taken during a meal period.

See WAC 296-62-09555.

When temperatures are at or above 89 degrees, the new rules, combined with existing rules, require employers to:

• Provide water that is cool enough to drink safely;
• Allow and encourage workers to take additional paid preventative cool-down rest to protect from overheating;
• Be prepared by having a written outdoor heat exposure safety program and providing training to employees; and,
• Respond appropriately to any employee with symptoms of heat-related illness.

See Department of Labor and Industries’ announcement.

Questions and Answers

To which employers does the rule apply?

This emergency rule applies to any employers with employees working outdoors who may be exposed to extreme heat, including: those working in agriculture, construction and other outdoor industries.

When must employers start complying?

Employers should have been in compliance since Tuesday, July 13th.

May employers provide a rest break at the same time as a cool-down rests?

Yes.  Cool-down rests may be provided concurrently with required rest and meal breaks.

Should cool-down rests be paid?

Cool-down rests must be paid unless taken during a meal break.

Is this rule permanent?

This rule is not yet permanent. The state Department of Labor and Industries (the “Department”) intends to begin the process of updating the existing state Outdoor Heat Exposure rule established in 2008, according to the agency’s announcement.

Of note, there will be opportunities for public input during the permanent rule making process.

What are the penalties for non-compliance?

Penalties will be calculated using the criteria, methods and procedures found in Chapter VI of the DOSH Compliance Manual. Penalties vary based upon the gravity of the offense and can range from $0-$1,000 for a general violation, $100-$7,000 for a serious violation, up to a maximum of $70,000 for willful or repeated violations.

The Department states that “special attention” will be given to ensuring appropriate considerations for “good faith, history, and employer size” apply when calculating the penalty. See Enforcement Procedures (updated last in 2009).

What if I have additional questions?

If you need help complying with the emergency heat prevention rules, or any other mandate affecting employers in Washington, please feel free to contact a Seyfarth attorney.

Additionally, you may contact the Department directly by contacting Shawn Apperson, at (360) 902-5478 or appt235@lni.wa.gov.