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.
On August 24, 2023, as part of its ongoing heat illness prevention rulemaking effort, the Occupational Safety and Health Administration (OSHA) released various options for inclusion in a proposed rule to address heat injury and illness prevention in outdoor and indoor work settings. At the same time, as part of its mandatory Small Business Regulatory Enforcement Fairness Act (SBREFA) process, OSHA also announced that it is holding a series of videoconferences with Small Entity Representatives (SERs) from September 7 through September 18, 2023. While these meetings are open to all members of the public, only SERs and Small Business Advocacy Review panel members can participate in the discussion.
In its outline of potential options for the various elements of a proposed rule, OSHA is seeking input from SERs on which of its proposed options would be “the least burdensome and most feasible ways for small businesses to adequately protect workers from dangerous heat while achieving OSHA’s statutory and regulatory objectives.” OSHA suggests that a proposed heat injury and illness prevention standard could cover indoor and outdoor work in any or all general industry, construction, maritime and agricultural sectors where OSHA has jurisdiction, and could require that employers create and update, as necessary, a written Heat Injury and Illness Prevention Program (HIIPP). Employers with ten or fewer employees could be exempted from implementing a written HIIPP.
The standard could require employers to identify heat hazards, either by monitoring weather conditions or measuring work area heat conditions using the heat index or ambient temperature and humidity. These measurements could trigger certain employer obligations when temperatures reach established thresholds. For example, OSHA suggests that control measures could be required when “initial heat triggers” are reached, and additional measures could be required when “high heat triggers” are reached. Notably, initial heat triggers could be reached with a heat index as low as 76 degrees Fahrenheit, and high heat triggers could be reached with a heat index as low as 83 degrees Fahrenheit.
OSHA is considering requiring a combination of engineering and administrative control measures. For outdoor work sites, such measures could include the provision of cool-down areas with fans, shade, mechanical ventilation or air-conditioning spaces inside of trailers, vehicles and structures that can accommodate all outdoor employees on break. For indoor work sites, OSHA could require cool-down areas, increased air movement, and barriers or local exhaust ventilation around fixed heat-generated sources. OSHA is also considering options for employer-provided vehicles or delivery trucks, including air-conditioning or other cooling mechanisms when high heat triggers are reached and when employees spend the majority of their shift working in or from vehicles.
Administrative controls could include providing suitably cool water and ample opportunities to drink water, acclimatizing new and returning employees, providing rest breaks in a cool or shaded area, supervising employees for signs and symptoms of heat illness, altering work schedules, and providing personal protective equipment such as cooling vests and wetted garments to protect against heat stress.
Employers may be required to establish and implement written medical treatment and emergency response procedures when signs and symptoms of heat stress are reported or observed. Employers could be required to train supervisors and employees on heat stress identification and prevention, including environmental monitoring and emergency response, in a language and at a literacy level that employees understand. Employers could be required to maintain records reflecting temperature monitoring data, heat illnesses and injuries even if they only require first aid, and all heat acclimatization records for new and returning employees. Finally, OSHA could require employers to establish procedures to effectively communicate and coordinate with other employers at multi-employer work sites, such as obligating host employers to communicate procedures for protecting all workers on-site from heat-related hazards, including contractors and independent contractors, vendors and staffing agencies.
OSHA’s Heat Injury and Illness Prevention Rulemaking Effort
OSHA’s release of potential heat illness control measures is the agency’s latest move as it continues the formal rulemaking process, which it initiated almost two years ago. On October 27, 2021, OSHA published an Advanced Notice of Proposed Rulemaking (ANPRM) entitled “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings,” seeking information to assist the agency in developing a federal heat injury and illness prevention standard. The ANPRM solicited public input by posing 114 questions on a wide range of topics, including whether specific populations may be more likely to face disproportionate exposure to hazardous heat, and likewise, adverse health effects from heat, whether existing state OSHA plan heat illness prevention standards should be considered for adoption in a federal standard, the potential underreporting of heat-related injuries and illnesses, worker acclimatization, heat stress monitoring and worker training. In support of its ANPRM, OSHA cited heat as the leading cause of death among all weather-related phenomena. OSHA granted particular deference to California’s heat-related injury and illness data as well as its existing heat illness prevention standard. OSHA identified roofing, postal and delivery services, construction and contracting, masonry, landscaping, restaurants, and warehousing and storage as industries that experienced the most heat-related inspections during 2019.
Earlier this year on February 9, 2023, the attorney generals of New York, California, Illinois, Massachusetts, New Jersey, Maryland, and Pennsylvania formed a coalition and sent a letter to OSHA petitioning the agency to issue an emergency temporary standard for occupational heat exposure. The recent publication and the initiation of the SBREFA process will likely limit the ability for OSHA to institute an emergency temporary standard but OSHA is under pressure to quickly proceed with the regulation.
What can employers do to prepare?
Given OSHA’s broad deference to existing state OSHA plan heat illness prevention programs in its ANPRM, its incorporation of many of those program elements into its outline of suggested heat stress control options, and the fact that OSHA’s National Emphasis Program on Outdoor and Indoor Heat-Related Hazards remains in effect until April 8, 2025 unless canceled or superseded, employers that are not already covered by those state OSHA plan programs should examine existing heat illness prevention rules – notably Cal/OSHA’s Outdoor Heat Illness Prevention Standard, Heat Illness Prevention Special Emphasis Program, and the latest draft Cal/OSHA Indoor Heat Illness Proposed Rule – for a preview of what a federal heat illness prevention rule may look like. Employers should evaluate OSHA’s proposed heat stress options to identify the potential challenges that may be presented to their operations by OSHA’s publication of a proposed heat illness prevention rule.
Small businesses should consider participating in OSHA’s Heat SBREFA videoconferences to offer critical feedback on how OSHA’s proposals may impact their operations and to influence the crafting of a federal proposed heat illness rule. Based on the data collected on state heat illness regulations, the majority of the citations received by businesses are due to errors associated with human factors. Unlike other regulations that provide objective factors or engineering controls, the heat illness standard’s potential proposed terms directly affect human factors such as acclimatization, reading tools to determine temperature, identifying signs of heat illness, ensuring and measuring employee water intake, and reading and understanding the heat index. The proposed terms are highly dependent on employees’ following proper protocols and carefully evaluating signs of potential exposure. Small Businesses should take these thoughts into consideration.
Littler will continue to monitor and provide updates on OSHA’s heat illness rulemaking effort.