| By: Russell P. Bailey
As we entered the dog days of summer, the U.S. Department of Labor Occupational Safety and Health Administration (OSHA) released the text of a proposed new rule targeted at protecting workers from the health risks of “extreme” heat. If the proposed rule becomes final, employers across the country will be required to develop and implement programs and protective measures when employees are exposed to working conditions where the heat index is 80 degrees Fahrenheit and above.
Background
OSHA has long considered exposure to heat to be a recognized workplace safety and health hazard. According to the Bureau of Labor Statistics, 479 workers in the U.S. died from exposure to environmental heat from 2011-2022, an average of 40 fatalities per year in that time period. There were also an estimated 33,890 work-related heat injuries or illnesses that resulted in days away from work from 2011-2020, an average of 3,389 per year. OSHA believes that these statistics are vastly underestimated.
Since 2012, OSHA has conducted annual outreach to raise awareness of heat hazards and provide guidance for heat illness recognition and prevention. In April 2022, the agency launched its National Emphasis Program for Outdoor and Indoor Heat-Related Hazards (Heat NEP) to increase its enforcement efforts. The result has been a significant rise in the number of OSHA inspections focused on heat-related hazards. From 2015 to 2022, OSHA conducted approximately 200 heat-related inspections each year. Since launching the Heat NEP, OSHA has conducted more than 5,000 heat-related inspections. Because OSHA has not had a specific standard covering heat-related hazards, OSHA’s ability to cite employers for potential violations has been limited to enforcement of the Occupational Safety and Health Act’s general duty clause, which requires employers to furnish a place of employment free from recognized hazards that are causing or are likely to cause death or serious physical harm. However, OSHA’s use of the general duty clause to cite heat-related hazards has come under judicial scrutiny, prompting the agency’s need to develop a specific standard.
In October 2021, OSHA began the comprehensive rulemaking process for developing a heat-specific standard. The proposed rule will be published in the Federal Register, and the public will have an opportunity to comment on the proposed rule. While the proposed rule is not yet final, it serves as a guide to what employers across various industries will be required to implement in order to protect their employees from heat-related hazards.
Who is affected by the proposed standard?
According to OSHA, the proposed standard would apply to all employers conducting outdoor and indoor work in all general industry, construction, maritime, and agriculture sectors where OSHA has jurisdiction. OSHA proposes to exclude from the rule: short-duration employee exposures to heat, emergency response activities, work activities performed in indoor work areas or vehicles where air conditioning keeps the ambient temperature below 80 degrees Fahrenheit, telework, and indoor sedentary work activities.
What does the proposed standard require?
OSHA’s proposed heat standard would require employers to develop and implement a program for identifying heat hazards, implement specific control measures when employees are exposed to heat at or above certain levels, develop emergency response procedures, and train employees and supervisors.
· Heat Injury and Illness Prevention Plan
The proposed standard would require employers to develop and implement a worksite Heat Injury and Illness Prevention Plan (HIIPP) that contains site-specific information to evaluate and control heat hazards in the workplace. The HIIPP must contain a comprehensive list of the types of work activities covered by the plan, identification of the heat metric the employer will monitor to comply with the proposed standard’s requirements, and all policies and procedures necessary to comply with the requirements of the proposed standard. Employers would also be required to designate one or more heat safety coordinators to implement and monitor the HIIPP, and employers would be required to evaluate the effectiveness of the HIIPP whenever a recordable heat-illness event occurred, but at least annually.
· Identification of Heat Hazards
For outdoor worksites, employers the proposed standard would require employers to monitor heat conditions by tracking local heat index forecasts or measuring heat index or wet bulb globe temperatures. For indoor worksites, employers would be required to identify work areas with the potential for hazardous heat exposure, develop and implement a monitoring plan, and seek employee input. Employers would have the option of assuming that the temperature at a work area is at or above certain heat triggers instead of conducting onsite measurements or tracking local forecasts. In such cases, the employer would be required to provide all control measures outlined by the standard.
· Implementation of control measures
The control measures required to be implemented by employers are determined by two heat triggers, the initial and high heat triggers, as defined by the proposed standard. The initial heat trigger is a heat index of 80 degrees Fahrenheit, while the high heat trigger is a heat index of 90 degrees Fahrenheit.
Where employees are exposed to heat at or above the initial heat trigger (80 F), the employer must provide: access to suitably cool drinking water; break areas with cooling measures such as air conditioning, artificial shade (tents, pavilions, but not from equipment), or natural shade; indoor area work controls such as fans or natural ventilation; acclimatization procedures for new and returning employees; paid rest breaks; and effective two-way communication with employees.
For employees who are exposed to heat at or above the high heat trigger (90 F), employers must provide: a minimum 15-minuted paid rest break at least every two hours; an observation system for signs and symptoms of heat-related illness (buddy system or observation by supervisor or heat safety coordinator); and a hazard alert prior to the work shift to notify employees of the importance of drinking water, right to take rest breaks, how to seek help, and emergency procedures. Additionally, employers would be required to post warning signs where indoor work areas have an ambient temperature that regularly exceeds 120 degrees Fahrenheit.
· Emergency Response and Planning
As part of the HIIPP, employers would be required to develop and implement a heat emergency response plan that includes, among other things, procedures for responding to an employee experiencing signs and symptoms of heat-related illness and identification of the individual(s) designated to ensure that the heat emergency procedures are followed.
· Training
Finally, prior to permitting employees to work at or above the initial heat trigger (80 F), employers would be required to provide training on a host of topics, including: heat stress hazards; heat-related injuries and illnesses; risk factors for heat injury or illness; signs and symptoms of heat stress; the HIIPP; and the right to engage in certain activities (rest breaks, water) provided by the proposed standard. Personnel responsible for supervising employees working at or above the initial heat trigger (80 F) and each heat safety coordinator would be required to receive additional, specialized training. Employers would be required to provide training annually.
What should employers do now?
OSHA’s proposed heat standard is not yet an enforceable final rule, and the requirements of the standard may change after OSHA considers comments from the public and industry stakeholders. The rulemaking process is nothing if not slow, as development of a final rule can take eighteen to thirty-six months after the proposed rule has been published. Additionally, a changing presidential administration or court challenges could also stand in the way of the standard going into effect.
Even considering these potential hurdles, employers covered by the proposed standard would be well served to begin working towards compliance with, at least, the core components of the proposed standard. As noted above, OSHA continues to conduct heat-related inspections under the Heat NEP, and the agency will cite potential heat violations under the general duty clause.
At a minimum, employers with employees who are exposed to high heat hazards should develop a written program that covers the identification and mitigation of heat-related hazards, signs and symptoms of heat stress, employee monitoring, emergency response, and effective training. OSHA has a number of resources on its website (www.osha.gov) to assist employers with developing an effective heat illness prevention program and educating employees. By developing and implementing an effective written program, employers will get a jump start on compliance with the proposed heat standard, mitigate OSHA enforcement risks, and, most importantly, keep their valuable employees safe from the hazards associated with working in high heat environments.
Employers with questions about OSHA’s proposed heat standard and heat hazard compliance, or OSHA enforcement should consider contacting the experienced OSHA at Rose Law Firm. Our team can provide comprehensive guidance and support to help you navigate the complexities of the new proposed standard and keep your workforce safe.
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