Since 2022, the Occupational Safety and Health Administration (OSHA) has been focused on heat-related hazards and possible heat-related injuries and illnesses in indoor and outdoor workplaces. As we discussed in this previous Alert, OSHA's prior focus was through its National Emphasis Program and enforcement of the "general duty" clause. Now, OSHA has proposed workplace regulations designed to protect workers from heat-related illnesses and fatalities, specifically.
Obligations under the proposed regulations are triggered when the ambient air temperature hits 80 degrees Fahrenheit, whether inside or outside. The obligations become more intense when temperatures climb to 90 degrees Fahrenheit. For example, at the initial heat trigger, paid rest breaks must be encouraged and provided when needed. At the second heat trigger, rest breaks are mandatory, must last at least 15 minutes, and must occur at least every two hours.
While there are several exceptions, if these regulations come to fruition, they will have a significant impact on myriad employers and their respective employees. In the post-Chevron deference world and in the midst of an election year at the White House, it is impossible to know whether this proposed rule will become final. However, it's reasonable to assume OSHA will attempt to continue its enforcement efforts under the general duty clause regardless. In summary, the proposed regulations will require employers to do the following:
- Develop and implement a Heat Injury and Illness Prevention Plan (HIIPP) that includes covered work activities; policies and procedures; methods for measuring and monitoring temperatures; designation of a Heat Safety Coordinator(s); emergency response and planning; and input from non-managerial employees and their representatives, if applicable;
- Provide cool, accessible drinking water;
- Provide one or more readily accessible shaded or air-conditioned break areas for outdoor work sites and an air-conditioned break area for indoor work sites;
- Provide fans, natural ventilation, or barriers from radiant heat sources in the work area for indoor work sites;
- Institute acclimatization protocols for new employees and employees who are returning to work after a leave of more than 14 days.
- Provide rest breaks;
- Institute methods to monitor employees to include either a mandatory buddy system, a supervisory system for groups of no more than 20 employees, or regular two-way communication for employees who are working alone at a site
- Covered employers will be required to train every employee and all supervisors on heat stress hazards, risk factors and warning signs for heat-related injury or illness, the importance and location of water and break areas, all policies and procedures applicable to their work site in general and their specific work duties, and their rights and responsibilities under those policies.
- Employers must repeat training annually and when any change to the work site affects heat exposure, when any policies or procedures change, when a heat-related injury or illness occurs on the job, or when there is an indication that an employee or supervisor is not understanding or retaining the necessary understanding.
Proposed regulations also contain record retention requirements and specify that all compliance should be completed at no cost to employees and that any employee time required for compliance, e.g. training, should be compensated at the employees' normal rate of pay.
The author would like to give credit to GableGotwals summer associate, Trisha E. Bunce, for research and assistance in preparing this Alert.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.