Employers need to be aware that the Occupational Safety and Health Administration (OSHA) is on the verge of issuing a new regulation aimed at imposing new and stringent standards spelling out in detail employer responsibility for preventing and addressing illnesses and injuries that arise among their workers in extreme heat conditions at both interior and exterior worksites.
The advanced rulemaking proposal was originally announced in 2021 and is in the last stages of development before finally being released. At that stage, OSHA will likely seek additional public comment before issuing a final rule. At that point, the rule could be stayed by courts while lawsuits are mounted to block it from taking effect. That process could take years.
The agency is currently seeking some additional last-minute input from smaller employers in those industry segments that have the largest number of small businesses expected to be impacted by the new standards. (It could be asked why they didn’t make more of an effort to do this earlier.)
Completion of this late-stage probe is being conducted as part of a small business impact study required by law before any new federal regulation can be published. Failure to do so could eventually become an argument for overturning the rule if it is challenged in court, which is a real possibility if employers believe that OSHA has gone too far with the new standard.
In a public statement, OSHA said it is specifically seeking input from warehousing, agriculture, construction, manufacturing, oil and gas, waste management, utilities, food service (regarding restaurant kitchens), and landscaping businesses.
Another requirement before a proposed rule can be issued is for it to be reviewed by the White House. There should not be any problem in gaining that approval since President Biden has already signaled he wants OSHA to get on with the heat initiative.
“We should be protecting workers from hazardous conditions, and we will. And those states where they do not, I’m going to be calling them out, where they refuse to protect these workers in this awful heat,” Biden stated in an announcement calling for additional worker heat protection initiatives at a press conference in late July.
What the Rule May Contain
You can expect that the new OSHA rule will be heavily influenced by union input. Among OSHA’s fiercest enforcement actions taken in support of organized labor are those involving retail giant Amazon, whose distribution centers are in the crosshairs of a nationwide union-organizing campaign. In addition to warehousing and distribution, OSHA has focused special enforcement attention on employers in the construction industry as well. Warehouse operators in particular should remain aware that the agency launched a National Emphasis Program (NEP) this year targeting the industry for intensive inspections.
The NEP will prioritize on-site response for complaints and for all employer-reported hospitalizations (i.e., severe injury reports) related to heat hazards. This targeted enforcement mechanism encourages early interventions by employers to prevent illnesses and deaths among workers during high-heat conditions, such as working outdoors in a local area experiencing a heat wave, note attorneys Erinn Rigney and April Boyer of the K&L Gates law firm.
Although the threat of heat illnesses and injuries has been a concern of OSHA for years, you may be surprised to know that the agency previously had never developed a formal regulation dealing with this threat.
The agency has based enforcement actions on the General Duties Clause of the Occupational Safety and Health Act (OSH Act). In addition to creating OSHA, the act also declares that it can take legal action against employers for failing to fulfill their general duty to maintain a safe and healthy workplace. This general duty clause has been cited repeatedly by the agency over the years and its enforcement ability on this basis has been supported by the courts.
Many warehouse operators like Amazon over the years have made great progress in introducing temperature controls into their facilities and adopting work practices like adopting automation and following established heat safety protocols. Oher industries where workers are required to toil outside, like construction, road repair and utility line work, have no choice but to deal with the unrelenting sun in the summertime.
Rigney and Boyer stress that employers should keep in mind that 26 states which have OSHA-approved state plans—including Washington, Minnesota and California—have specific laws governing occupational heat exposure, with Minnesota’s plan also applying to indoor places of employment. While California’s Heat Illness Prevention Program regulation applies to all outdoor employment, a heat illness prevention program for indoor employment is in development.
It can be expected that the new OSHA rule will incorporate some of these state standards that are already in place, as well as lessons learned by the federal agency during its recent heat-related NEP heat enforcement campaigns, including the one that it pursued last year.
NIOSH Weighs In
Although the exact content of the new rule is not yet known, OSHA has been working closely with the National Institute for Occupational Safety and Health (NIOSH), which earlier suggested that standards should include:
• Reducing physical demands of the work by using powered assistance for heavy tasks.
• Helping workers acclimate to high temperatures by gradually increasing exposure to hot conditions over 7-14 days.
• Scheduling new workers for no more than 20% of the usual duration of work in a hot environment on the first day with no more than a 20% increase each day.
• Encouraging water intake at frequent intervals to prevent dehydration (one cup every 15-20 minutes).
• Providing a shaded and/or air-conditioned space nearby.
• Monitoring workers for complicating conditions such as alcohol ingestion, diarrhea and low-grade infections.
• Cooled air, cooled fluid or ice-cooled clothing, and reflective clothing or aprons for workers in hot industrial environments.
Currently, OSHA recommends that employers set thermostats between 68◦ F and 78◦ F. It also suggests that employers provide workers with water and rest; allow new or returning workers to gradually increase workloads and take more frequent breaks as they acclimatize or build a tolerance for working in the heat; plan for emergencies and train workers on prevention.
Over the years, OSHA has developed a resource-rich guide that business owners and managers can make good use of to prevent heat illness in their workplace. This is a good guide to follow to make sure that you have done everything you can to protect your workers. It also help you be better prepared when an OSHA inspector comes calling who is either pursuing an NEP or enforcing the new rule once it is issued.