Sounding the AlarmSep 05, 2023
OSHA’s Heat-Hazard Alert and the Employer’s Responsibilities
This year’s extreme summer heat recently prompted action from the White House. In late July, President Biden requested that the Department of Labor “ramp up enforcement of heat-safety violations” and increase inspections in high-risk industries — while continuing to develop a national standard for workplace heat-safety rules. These inspections will focus on the high-risk industries identified in OSHA’s National Emphasis Program (NEP) on heat — particularly construction and agriculture.
The President also asked the Department of Labor to distribute the first-ever “Hazard Alert” for heat, stating, “Workers, including farmworkers, farmers, firefighters, and construction workers, are disproportionally impacted by extreme heat. “Since 2011, more than 400 workers have died due to environmental heat exposure, and thousands more are hospitalized every year.”
OSHA’s heat-hazard alert
OSHA immediately published this alert to employers, reminding them of their “legal and moral responsibility not to assign work in high heat conditions without protections in place.” As part of the alert, the Department of Labor provides information about what employers can and should be doing now to protect their workers, including helping to educate employees about their rights. OSHA also offers a free, downloadable OSHA-NIOSH Heat Safety Tool app that calculates the heat index at a specific location or worksite and displays the associated risk levels.
The basic recommendations articulated in the July 27, 2023 alert are clear:
- Provide adequate cool water, rest breaks, and shade or a cool rest area for employees.
- Give new or returning employees a chance to gradually acclimate to working in hot temperatures, to be trained and plan for emergencies, and to monitor for heat signs/symptoms.
- Train employees on heat illness prevention, signs of heat illness, and how to act immediately if another employee appears to be suffering from a heat-related illness.
Employers are strongly advised to develop their own Heat Illness Prevention Plan, outlining the employer’s efforts to educate and train workers on recognizing signs of heat-related illnesses, address and manage extreme heat events, and “ensure adequate oversight, supervision, and enforcement of the employer’s policies.” OSHA will be looking for this plan if and when they visit.
What about OSHA’s heat hazard rule?
OSHA announced the initiation of a heat hazard rulemaking process in late 2021, and according to a report by the Government Accountability Office in 2012, this process takes an average of seven years. There are multiple steps the agency must complete to enact a rule — most of them dictated by Congress or through Executive Order.
The proposed rule includes both indoor and outdoor working environments. Its expansive scope requires extensive scientific and economic analysis of various industries before a standard set of requirements can be articulated. It’s going to take a few years to accomplish.
One of the critical components of the proposed rule is to allow workers to become accustomed to working in hot weather — a process called acclimatization. In the proposed rule, OSHA cites a variety of evidence-based research 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. And 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. OSHA has been silent on this point to date.
What should employers do?
Employers in targeted industries must be prepared for inspection and to answer questions about their heat stress plan. We can be reasonably 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 heat-related 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 OSHA-compliant policies is helpful. Don’t hesitate to contact Orr & Reno if you need assistance.
About the author: James F. Laboe