Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
In recent weeks, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has signaled efforts to increase its scrutiny of work activities that may expose workers to heat-related hazards. On September 1, 2021, OSHA issued a Memorandum to its Regional Administrators and State Designees to announce a workplace heat enforcement initiative encouraging increased examination of work activities taking place on days when the heat index exceeds 80°F.
In addition, on September 20, 2021, OSHA announced that it will continue and expand its focus on heat-related hazards, in conjunction with President Biden’s efforts to mobilize his administration to combat the negative impacts of extreme weather exacerbated by climate change. OSHA announced plans to develop a National Emphasis Program (NEP), undergo rulemaking to develop a workplace heat standard, and create a work group within its National Advisory Committee on Occupational Safety and Health (NACOSH) focused on heat injury and illness prevention.
Workplace Heat Enforcement Initiative
Through a new enforcement initiative, OSHA will prioritize heat-related interventions and workplace inspections on days when the heat index exceeds 80°F. On these days, OSHA area directors will dedicate additional resources in responding to heat-related complaints and expand the scope of programmed and unprogrammed inspections to address heat-related hazards. In addition to shaping the focus of OSHA field staff, this initiative also will expand on OSHA’s campaign to educate and assist employers on heat illness prevention.
The initiative applies to both indoor and outdoor worksites. Indoor worksites that may be impacted by extreme heat include foundries, brick-firing and ceramic plants, glass production facilities, rubber products factories, electrical utilities (particularly boiler rooms), bakeries, confectioneries, commercial kitchens, laundries, food canneries, warehouses without adequate climate control, chemical plants, and smelters. Outdoor work activities that may cause exposure to extreme heat include agriculture, landscaping, construction operations, refining gas/oil and well operations, asbestos and lead removal, waste collection activities, package and mail delivery, and any other activities that require moderate to high physical exertions or the wearing of heavy or bulky clothing or equipment on a hot day.
Although some state agencies like those in California and Washington have already implemented heat illness standards, OSHA does not currently have a heat standard, so most citations related to exposure to heat-related hazards would be issued under OSHA’s General Duty Clause. In addition, OSHA identified certain other standards that may apply, including its recordkeeping regulation (requiring recording of injuries that require medical treatment beyond first aid), sanitation standards (requiring employers to provide potable water), and general construction safety training and education standards (requiring a Safety and Health Program and frequent and regular safety and health inspections).
Employers in targeted industries should also be aware that during an OSHA inspection, the scope of the inspection may be expanded to include any plain-view hazards that come to the attention of the compliance officer. Employers should take additional precautions on any day in which temperatures exceed 80°F indoors or outdoors, including ensuring employees have adequate shade, water, and ventilation, and have the ability to cool down during breaks.
National Emphasis Program
OSHA is also working to formalize an NEP on heat hazard cases, which will target high-risk industries and focus OSHA resources and staff time on heat inspections. Establishing a new NEP requires extensive data review, which OSHA is completing for the NEP to take effect before the summer 2022 heat season. In doing so, OSHA will build on the existing Regional Emphasis Program for Heat Illnesses in Region VI, which covers Arkansas, Louisiana, New Mexico, Oklahoma, and Texas.
Rulemaking to Issue Permanent Heat Standard
OSHA is expected to publish an Advance Notice of Proposed Rulemaking (ANPRM) on heat illness prevention in outdoor and indoor work settings in the Federal Register next month. This is a significant step toward a federal heat standard to ensure protections in workplaces across the country. The ANPRM will initiate a comment period allowing for OSHA to gather diverse perspectives and technical expertise on topics including heat stress thresholds, heat acclimatization planning, and exposure monitoring.
NACOSH Work Group on Heat Injury and Illness Prevention
Within OSHA’s NACOSH, OSHA is forming a Heat Illness Prevention Work Group to provide a better understanding of challenges and best practices in protecting workers from heat hazards. This group will include three members of the full NACOSH—a public representative, labor representative, and management representative—as well as new members from a range of sectors and industries. OSHA will convene periodic meetings of the work group to provide diverse perspectives on topics including identification, monitoring, and response to workplace heat hazards; heat emergency response plans; and worker training and engagement.
What Should Employers Do to Prepare?
Employers should be cognizant of potential citations relating to heat illness and should prepare for inspections by reviewing their procedures and developing a manner to monitor outdoor (and, in certain industries, indoor) temperatures, ensuring employees have access to shade and water, educating employees on signs of heat illness, and providing access to ventilation or cooling areas in their workplace. Once OSHA’s ANPRM is released, employers should be prepared with data and information to identify complexities with compliance.