Summer may be coming to an end, but the regulatory landscape heated up on August 30 when the Occupational Safety and Health Administration (OSHA) published its highly anticipated Heat Injury and Illness Prevention in Outdoor and Indoor Setting proposed rule. The rule, a first-of-its-kind for OSHA, will establish new heat-related standards that could impact roughly 36 million workers nationwide across the general industry, construction, maritime and agriculture sectors. Employers in these areas can expect a revamp of their work policies to meet the new obligations.
The proposal's new requirements include an obligation for employers to develop an injury and illness prevention plan to control heat hazards in workplaces affected by excessive heat. Employers will be required to, among other responsibilities:
- Assess heat risks: A heat index at or above 80 degrees will trigger the compliance requirement, and employers will have to evaluate heat exposure risks depending on the employee role and setting.
- Implement requirements for drinking water, rest breaks, and controlling indoor heat: Employers must ensure workers have access to one quart of water per hour, allow paid rest breaks if needed, and provide readily accessible break areas that may require shade or air-conditioning, depending on the location.
- Develop a plan to ramp up new or returning workers unaccustomed to high heat working conditions: Employers will need to provide a one-week acclimatization period.
- Provide training: Employers will have to provide initial and annual refresher training to supervisors, heat safety coordinators, and employees on topics that include heat-related symptoms and illnesses, first aid and prevention.
- Develop response procedures to assist employees experiencing heat-related illness symptoms: Employers will be expected to take immediate action to assist a worker experiencing signs and symptoms of a heat emergency.
- Maintain records of heat monitoring data: Employers will have to maintain indoor work area heat measurements for six months.
Certain safety protocols become more stringent at the "high heat trigger," i.e., a heat index at or above 90 degrees. These employers will be expected to provide paid 15-minute rest breaks every two hours, set up an employee observation system, maintain effective two-way communication at least every two hours with employees working individually at remote locations, and provide hazard alerts to employees on heat safety procedures.
Workers not covered by the new standard include those not reasonably expected to be exposed to a heat index above 80 degrees (or exposed for only 15 minutes or less over a 60-minute period), indoor workers whose work area is regulated below 80 degrees, emergency responders, indoor sedentary workers (e.g. desk employees), and teleworkers.
Given its wide-ranging impact, the proposal is expected to receive significant public input. The written comment period is now open and OSHA is accepting comments until December 30, 2024 (comments can be submitted online here). The proposal comes at an interesting time for OSHA in the wake of recent Supreme Court decisions on Agency overreach and a looming presidential election. A final rule, if reached, could face legal challenges down the road. Regardless of what happens in those arenas, however, this is not the first time OSHA has tackled heat-related illnesses and injuries. OSHA currently relies upon the OSHAct's general duty clause to inspect heat-related complaints in the workplace, and established a National Emphasis Program in 2022 to address workplaces with the highest heat-related exposure risks. Since that program's inception, OSHA has conducted over 5,000 federal heat-related inspections. This proposal will therefore provide the regulated community with more clarity on its employer obligations and OSHA's areas of emphasis for heat-related concerns. Employers should consider the proposal as a framework for minimizing risk and exposure in an area facing increasing agency scrutiny.
We will continue to monitor the proposed rulemaking and other OSHA developments on the Corporate Environmental Lawyer.
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