On July 2, 2024, OSHA revealed an unofficial version of its Notice of Proposed Rulemaking (NPRM) for an Indoor and Outdoor Heat Illness Prevention Rule. For unknown reasons, OSHA has not yet published the official NPRM in the Federal Register, but it is expected any day. Interested stakeholders will have a 120-day period to submit public comments to OSHA after the NPRM is published, which will make comments due likely sometime in December 2024.

CMC’s Employers Heat Illness Prevention Rulemaking Coalition has had a prominent seat at the table from the get-go to advocate for the most reasonable possible standard. Read our article here for more information about our advocacy to OSHA during earlier stages of OSHA’s Heat Illness Rulemaking.

This Alert provides a detailed summary of what is in OSHA’s proposed Indoor and Outdoor Heat Illness Prevention Rule and how to ensure your industry’s interest are represented during the final phase of OSHA’s Heat Illness Rulemaking.

What is in OSHA’s NPRM for the Heat Illness Rule

Below is a summary of what is in the NPRM and some of our initial impressions of OSHA’s proposal:

1. 1. 1. OSHA will require employers to develop and implement comprehensive, site-specific written Heat Injury and Illness Prevention Plans (“HIIPP”).
         • • The HIIPP will have to include:
             1. a list all types of work activities covered by the HIIPP
             2. all policies and procedures necessary to comply with OSHA’s heat illness rule
             3. establish the employer’s chosen heat metric
             4. identify one or more specific Heat Safety Coordinator(s).
           • The HIIPP must be reviewed and evaluated at least annually, and whenever a heat-related illness occurs that requires medical treatment beyond first aid or worse.
           • Employers must involve non-supervisory employees (and their representatives) in the development, implementation, review, and updates to the HIIPP.
           • The HIIPP must be made available in a language each employee, supervisor, and Heat Safety Coordinator can understand.
2. 1. 2. OSHA’s proposal abandons the flexible approach it was considering for Acclimatization Protocols for new and “returning workers,” and replace it with onerous and highly restrictive provisions:
         • • OSHA has included proposals about the “Rule of 20%,” which requires new employees to be gradually exposed to heat during their first week on the job (Day 1 = 20%; Day 2 = 40%; Day 3 = 60%; Day 4 = 80%).
           • For returning workers, returning to work after as few as 14 days away, OSHA is proposing modified gradual exposure schedule, by which returning employees, during their first week back, are permitted to be exposed at no more than 50% on Day 1, 60% on Day 2, and 80% on Day 3.
3. 1. 3. For outdoor work areas, employers will be required to Monitor Heat Conditions by:
         • • Tracking local heat index forecasts provided by the National Weather Service or other reputable sources; or
           • Measuring the heat index as close as possible to the work areas
           • Measuring the ambient temperature and humidity separately to calculate heat index; or
           • Obtaining a wet bulb globe temperature.
4. 1. 4. At indoor work sites, employers will be required to conduct special Heat-Related Hazard Assessments to:
         • • Identify work areas where there is a reasonable expectation employees may be exposed to heat at or above an Initial Heat Trigger set by the rule (see below).
           • Develop and implement monitoring plans covering each potential high-heat work area, requiring the same type of monitoring or measuring as in outdoor work areas.
           • Whenever there is a change in production, processes, equipment, controls, or a substantial increase in outdoor temperatures that could increase indoor heat exposure, employers must evaluate any affected work areas to identify where there is a reasonable expectation employees may be exposed to heat at or above the Initial Heat Trigger, and update or develop a monitoring plan, accordingly.
           • Employers must seek input from non-supervisors when evaluating the work site, and in developing and updating monitoring plans.
5. 1. 5. Requirements at or above the Initial Heat Trigger (“heat index of 80°F or a wet bulb globe temperature equal to the NIOSH Recommended Alert Limit.”) include prescriptive requirements:
         • • Provide access to potable drinking water, such as that water must be: (i) placed in locations readily accessible to the employee; (ii) suitably cool; and (iii) of sufficient quantity to provide access to 1 quart of drinking water per employee per hour.
           • Provide sufficient readily accessible break areas to accommodate the number of employees at the workplace:
             • For outdoor work sites or work in enclosed spaces (like a trailer), there must be at least one break area that has air-conditioning, artificial shade (e.g., tent, pavilion), or natural shade.
             • For indoor work sites, employers will be required to provide at least one break area that is air-conditioned, or that has increased air movement and de-humidification.
           • For indoor work areas, OSHA will be requiring Engineering Controls including:
             • increased air movement (e.g., fans or comparable natural ventilation), and de-humidification;
             • Air-conditioned work areas; or
             • in cases of radiant heat sources, other measures that effectively reduce employee exposure to the radiant (e.g., shielding/barriers, isolating heat sources).
           • Allow for and encourage employees to take Paid Rest Breaks.
           • Maintain a means of effective, two-way communication with employees and regularly communicate with employees.
           • If employers provide employees with cooling PPE, employers must ensure the cooling properties of the PPE are maintained at all times during use.
6. 1. 6. Requirements at or above the High Heat Trigger (“heat index of 90°F or a wet bulb globe temperature equal to the NIOSH Recommended Exposure Limit.”) are in addition to those for the Initial Heat Trigger (see above) and include:
         • • Mandatory 15-minute minimum paid rest breaks at least every two hours (the time it takes to walk to/from the break area and the time to don/doff PPE are not included);
           • Observation for signs and symptoms through either a mandatory buddy system, or regular observation by a supervisor or a Heat Safety Coordinator (with a ratio of no more than 20 employees per supervisor);
           • Hazard alerts; and
           • Signage for excessively high-heat indoor work areas.
7. 1. 7. Requirements for heat illness-related emergency response and planning.
      8. Comprehensive and recurring heat illness-related training, including initial, annual, and supplement training, all of which must be provided in a language and at a literacy level each employee understands, and with the opportunity for questions and answers about the training materials; and
      9. New heat illness-related recordkeeping requirements.

CMC’s Employers Heat Illness Rulemaking Coalition

Through our recent OSHA rulemaking coalitions, including earlier stages of this heat illness rulemaking, we have had a very positive impact on OSHA standards and regulations. We have submitted comprehensive written comments to the rulemaking dockets, testified at rulemaking hearings, and advocated directly to OSHA and the White House, through its Office of Management and Budget, in formal and informal stakeholder meetings. Through those prior rulemaking coalition initiatives, our input has resulted in direct changes to regulatory language and decisions by OSHA about the substance and policy direction of its regulations and standards, as well as industry carve-outs and important exemptions.

We intend to follow a similar approach as we enter this critical “Final Phase” of the Heat Illness Rulemaking. We will be coordinating with our coalition members to:

1. 1. Keep coalition members informed about developments with the rulemaking on a regular and frequent basis;
   2. Analyze the Notice of Proposed Rulemaking package when it is issued in the coming weeks;
   3. Present to the coalition members about the proposed rule and areas of concern we have identified;
   4. Solicit your input about the direct and indirect burdens and costs associated with OSHA’s proposed rule;
   5. Prepare our most comprehensive set of written comments about the rule;
   6. Testify at a rulemaking hearing (if there is one);
   7. Participate in multiple EO 12866 stakeholder meetings with the White House’s Office of Management and Budget;
   8. Engage in any other formal or backchannel advocacy opportunities with the decisionmakers at OSHA or the Administration that we see; and
   9. Educate coalition members about the rulemaking and the final regulation through regular email updates and/or calls and virtual meetings.

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