On July 2, 2024, the Occupational Safety and Health Administration (OSHA) gave notice of proposed rulemaking titled “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.” The proposed rules would for the first time set federal heat standards to protect the health and safety of U.S. workers. There are currently no federal OSHA standards regulating heat-stress hazards in the workplace.
Why is OSHA Proposing New Workplace Heat-Exposure Rules?
This is no small matter. Heat is the leading cause of weather-related deaths in the United States. According to the Bureau of Labor Statistics, 479 workers in the U.S. died from environmental heat exposure during a ten-year period ending in 2022, an average of more than 40 heat-related fatalities per year. Nearly 3,400 workers suffer work-related heat injuries and illnesses each year. OSHA has concluded that these statistics, while significant in their own right, vastly underestimate the actual threat to workers from heat-related injuries, illnesses, and deaths in the workplace.
What is the Scope of the Proposed Standard?
OSHA’s new standards are expansive. They would apply to “all employers conducting outdoor and indoor work in all general industry, including construction, maritime, and agriculture. Excluded from the proposed rule, however, would be the following work settings:
- Short duration employee exposures to heat;
- Emergency response activities;
- Work at indoor sites kept below 80 degrees Fahrenheit;
- Telework; and
- Indoor sedentary work activities.
What Do the Proposed Standards Require of Employers?
As proposed, the regulations would require employers to:
- Develop and implement a worksite-specific heat injury and illness prevention plan (HIIPP) to evaluate and control heat hazards in the workplace
- Identify heat hazards for all work sites, including
- For outdoor sites, to monitor heat conditions and track local heat index forecasts or take heat measurements at the job site
- For indoor settings, to identify work areas with the potential for heat exposure and develop a monitoring plan, using employee input.
- Implement control measures tied to the level of heat present in the workplace
- At or above a heat index of 80 degrees F (termed the “Initial Heat Trigger”), employers must provide employees with cool drinking water, break areas with cooling measures, indoor work area controls, and acclimatization protocols for new or returning workers
- At or above a heat index of 90 degrees F (termed the “High Heat Trigger”), employers must implement additional control measures, including 15-minute breaks every two hours, actively observe workers for signs of heat-related illness, a hazard alert to remind employees of the important parts of the HIIPP, and post warning signs at indoor work areas with air temperatures that regularly exceed 120 degrees F
- Develop both initial training and annual refresher training for supervisors and employees
- Maintain written or electronic records of indoor heat monitoring data
- Absorb all costs related to implementing the proposed regulations; no costs can be passed to employees
What happens next?
OSHA’s proposed heat-illness regulations do not become effective immediately. The agency has indicated that it will publish the proposed regulations in the Federal Register sometime in August 2024. They are subject to a 60-day public comment period. After consideration of all public comments submitted, OSHA can publish and finalize the rule in its current form or with modifications, which may take the agency some time to do if the volume of comments is high. Legal challenges to OSHA’s authority to implement the heat-exposure workplace regulations seem likely from business interest groups and other interested parties, especially in light of the U.S. Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo, which tightened judicial oversight of agency rulemaking, and may result in further delays in any implementation of a final rule.
What Steps Should Employers Be Considering Now?
Whether or not OSHA’s proposed heat-exposure regulations survive judicial scrutiny, employers should be moving in the direction of general compliance with the broad standards set forth in the proposed regulations. With heat already the leading weather-related killer and becoming more dangerous due to global warming, OSHA is firmly fixated on using its enforcement authority under the General Duties Clause of the OSH Act against employers who are not sufficiently proactive in counteracting heat-related work conditions.
We will be providing more updates regarding OSHA’s proposed rules on heat injury and illness prevention. If you have questions about your current policies and practices or would like additional information, please contact Doug Taylor, at rdougtaylor@beankinney.com or (703) 525-4000.
This article is for informational purposes only and does not contain or convey legal advice. Consult a lawyer. Any views or opinions expressed herein are those of the author and are not necessarily the views of any client.