Is OSHA’s New Heat Standard Legal? Navigating the Legal and Political Landscape
Aug 22, 2024Is the Proposed Heat Standard Legal?
The rule is valuable even if it doesn’t get finalized
In the wake of the recent United States Supreme Court’s (USSC) frontal assault on the administrative state — see Loper Bright Enterprises v. Raimondo (Loper Bright) and Securities and Exchange Commission v. Jarkesy (Jarkesy) — the legal and political atmosphere surrounding rulemaking and enforcement is suddenly in significant flux.
That’s why the July 2, 2024, announcement from the Occupational Safety and Health Administration (OSHA) — unveiling their proposed rule to establish a federal heat standard — was received under a cloud of possible, if not probable, illegitimacy. Given the USSC’s Loper Bright decision, it is suddenly quite reasonable to ask if OSHA has the authority and ability to write such a broad rule affecting millions of workers. Will OSHA have the authority to enforce a heat rule if it is challenged?
OSHA announced the proposed new heat rule on the same day that the USSC declined to take a case that could have completely gutted the agency. The court refused to hear arguments in Allstates Refractory Contractors v. Su, which sought to effectively disempower OSHA. Neil Gorsuch and Clarence Thomas said they would have accepted the case. The other judges didn’t state their reasons for refusing to take the case.
The fall presidential election could also impact the proposed heat rule’s ultimate fate. Should former President Donald Trump win, he could probably prevent a new rule from taking effect when his new cabinet assumes power. However, even with all these factors in play, this rule matters — regardless of whether or not it gets finalized. The content of the proposed rule is an excellent resource that employers can use right now to improve their safety practices.
The Proposed Rule
According to the Bureau of Labor Statistics, between 2011 and 2022, 479 workers in the United States died from exposure to environmental heat. For the same period, 33,890 work-related heat injuries and illnesses also resulted in days away from work. The proposed heat standard was developed to help address this public health concern. “Every worker should come home safe and healthy at the end of the day, which is why the Biden-Harris administration is taking this step to protect workers from the dangers posed by extreme heat,” said Acting Secretary of Labor Julie Su in a press release announcing the publication of the text of the proposed heat standard.
If adopted, the proposed rule — entitled Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings — will apply to all employers with ten or more employees with a “reasonable expectation” of exposure to certain heat thresholds.
- An initial heat trigger at 80F heat index — a measurement of the ambient temperature and humidity. Employers must provide employees with drinking water and shaded break areas when temperatures reach this mark.
- At the high heat trigger of 90F, employers would have to begin monitoring for signs of heat illness and provide 15-minute breaks every two hours.
The proposed rule provides for some limited exceptions:
- Short-duration exposures to heat of 15 minutes or less in any 60-minute period.
- Emergency response activities — like firefighting.
- Indoor work environments where air-conditioning keeps the ambient temperature below 80F.
- Remote/telework settings.
- Indoor, sedentary work activities that involve sitting, occasional standing or brief periods of walking, and lifting objects weighing less than 10 pounds.
Other Requirements
The proposed rule will require employers to monitor indoor and outdoor work areas. For indoor work areas, employers must first identify each area with a “reasonable expectation” of employee exposure to heat thresholds, develop a monitoring plan for each location, and maintain records of on-site heat measurements. If there is a change in “production, processes, equipment, controls, or a substantial increase in outdoor temperature which has the potential to increase heat exposure indoors,” employers are expected to re-evaluate and update their plans.
For outdoor work areas, employers are expected to track local heat index forecasts or measure the heat index as closely as possible to the work area and monitor the work area with “sufficient frequency” to determine employees’ exposure to heat with “reasonable accuracy.” The proposed standard also includes specific acclimatization protocols for new and returning employees who have been away for 14 days or more.
The Plan
Employers are expected to develop a written Heat Injury and Illness Prevention Plan (HIIPP) with site-specific information about the identification, monitoring, and controlling of heat hazards. Part of this required prevention plan is an emergency response plan. In an emergency, employees must have access to emergency phone numbers, instructions for contacting supervisors and emergency medical personnel, and instructions for identifying and responding to employees experiencing signs and symptoms of heat-related illnesses.
The HIIPP should also include the name of the individual with the responsibility and authority to ensure compliance with the HIIPP, all policies and procedures adopted by the employer to comply with the standard, and a description of how the employer will review and evaluate the effectiveness of the program.
Next Steps
Once the rule is published in the Federal Register, which should happen very soon, interested parties will have 120 days to submit comments at www.regulations.gov—Docket No. OSHA2021-0009. But no matter what happens to this rule in the coming months, employers are encouraged to become familiar with the information presented in the rule and develop or update their plans based on OSHA’s proposal.
Remember that an ongoing National Emphasis Program (NEP) on heat remains in effect, with prioritized inspections in construction, agriculture, and other high-risk worksites. Employers in high-risk industries are wise to anticipate an inspection and prepare themselves to answer questions about their HIIPP. OSHA makes it clear that failure to implement appropriate plans to prevent and remedy heat-related illnesses could lead to General Duty clause citations.
If you are concerned about the adequacy of your current HIIPP, it is helpful to work with an attorney with experience drafting OSHA-compliant policies. Don’t hesitate to contact Orr & Reno for assistance.
