OSHA’s Heat Standard Moves Forward

The Occupational Safety and Health Administration (OSHA) is moving forward with the heat standard rulemaking process, and we could see the proposed standard very soon. After reviewing the proposed rule in April, the Advisory Committee on Construction Safety and Health (ACCSH) recommended that OSHA move forward “expeditiously” in its rulemaking process.

“Workers at risk of heat illness need a new rule to protect workers from heat hazards. OSHA is working aggressively to develop a new regulation that keeps workers safe from the dangers of heat,” explained Doug Parker, Assistant Secretary for OSHA in a news release announcing ACCSH’s endorsement. “As we move through the required regulatory process for creating these protections, OSHA will use all of its existing tools to hold employers responsible when they fail to protect workers from known hazards such as heat, including our authority to stop employers from exposing workers to conditions which pose an imminent danger.”

OSHA typically issues heat-related citations by utilizing the General Duty Clause of the OSH Act, which requires all employers to maintain the workplace free from all “recognized” hazards.

What’s in the proposed rule?

We know that the proposed rule includes indoor and outdoor working environments and is expansive in scope. Preparation has required extensive scientific and economic analysis of various industries to articulate a standard set of requirements.

The April ACCSH meeting focused on the rule’s scope and application, the definition of key terms, and the requirements for an employer’s Heat Injury and Illness Prevention (HIIP) Plan. The elements of an HIIP Plan include:

• Identification of heat hazards

• Requirements for employers at or above both initial and high heat triggers

• Heat illness and emergency response protocols

• Training

• Recordkeeping requirements

At the ACCSH meeting, Stephen Schayer, director of OSHA’s Office of Physical Hazards, noted that OSHA is considering possible exclusions for short-duration exposures, emergency response activities (those activities and employees covered under OSHA’s separate Emergency Response standard), indoor sites kept below 80 degrees where there is air conditioning, telework employees, and indoor sedentary activities (such as “office work”).

One critical component of the proposed rule is allowing workers to become accustomed to working in hot weather—a process called acclimatization. In the proposed rule, OSHA cites various evidence-based research studies suggesting that workers need at least five days to adjust to hot temperatures and that workers just starting acclimatization shouldn’t work an entire shift in hot weather.

Employers are concerned that such shift restrictions would make it more difficult to hire temporary workers. It’s also challenging to “phase in” workers on some worksites where rotation between hot and cooler assignments isn’t possible.

What’s hot?

What’s the trigger temperature where precautions become necessary? Oregon and Washington, for example, require action at 90 degrees outdoors and 80 degrees indoors. Minnesota’s indoor heat rule establishes trigger temperatures based on the intensity of the labor: heavy, 77 degrees; moderate, 80 degrees; and light, 86 degrees. Until a few weeks ago, OSHA had been mostly silent on this subject.

Stephen Schayer announced a proposed threshold of 80 degrees Fahrenheit at the ACCSH meeting.

Existing initiatives

OSHA has had an ongoing National Emphasis Program (NEP), launched in 2022, focusing on indoor and outdoor heat-related hazards. This program inspects workplaces with high heat-hazard exposure risk. According to OSHA, the agency has conducted nearly 5,000 such inspections since the launch.

In the months ahead, the agency said it will prioritize programmed inspections in agricultural industries that employ temporary, nonimmigrant H-2A workers for seasonal labor. These workers are more vulnerable to hazards due to language barriers, less control over their living and working conditions, and are often unaware of the acclimatization process and how to recognize the signs of heat illness.

It is also interesting to note that the American Society of Safety Professionals (ASSP) and the American National Standards Institute (ANSI) have recently collaborated to publish ANSI/ASSP A10.50-2024, Heat Stress Management in Construction and Demolition Operations. This is the first national voluntary consensus standard addressing heat stress hazards in the construction and demolition industries. It includes guidance on protection from heat stress, instructions on acclimating workers to highheat conditions, and training modules for employees and supervisors. While focused on outdoor heat hazards in construction and demolition operations, this guidance can be easily adapted for other professions like arborist, landscaping, farming, pipeline installation and maintenance, and other outdoor workplaces.

What should employers do?

Employers in targeted industries — particularly agriculture and construction — must be prepared for inspection and answer questions about their heat stress plan. We can be sure that a final rule will make a written heat stress plan mandatory, so for those employers who don’t already have one, it’s essential to put this plan together. OSHA makes it clear that failure to implement appropriate plans to prevent and remedy heatrelated illnesses could lead to General Duty clause citations.

If you are concerned about the adequacy of your current heat-related illness prevention plan, working with an attorney with experience in drafting OSHAcompliant policies is helpful. Don’t hesitate to contact Orr & Reno if you need assistance.

James F. Laboe

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