Introduction
Following the hottest June on record and with temperatures rising as we approach the dog days of summer, OSHA recently issued a long-awaited proposed rule creating standards for heat injury and illness prevention in outdoor and indoor settings (the “Proposed HIIP Rule”). Created following OSHA’s multi-year consultation with employers, industry groups, and advisory boards, the Proposed HIIP Rule would require employers to take a comprehensive approach to heat injuries and illnesses, as it directs them to:
- develop a heat injury prevention plan (“HIIP Plan”);
- identify and monitor heat hazards at specified times and circumstances for both indoor and outdoor work;
- implement engineering and work practice controls based on heat level “triggers”;
- prepare and follow a heat illness emergency response plan; and
- train employees about heat-related hazards.
Employers may submit comments on the proposed rule for 120 days following the Proposed HIIP Rule’s publication on July 3, 2024.
OSHA first introduced a proposed heat injury and illness rule in late 2021—technically an advance notice of proposed rule-making—in response to nationwide workplace heat-related fatalities, injuries, and illnesses. According to OHSA, the employers and advisory groups that provided input on the initial proposed rule endorsed having a standard for heat injury and illness prevention. Upon this preliminary review, however, OSHA modified the initial proposed rule to accommodate small businesses by providing more flexibility in the Proposed HIIP Rule.
Summary of the Proposed Rule
Despite the flexibility the revised language created, the Proposed HIIP Rule has multiple components which, if enacted, will have a broad impact on employer workplace safety obligations.
Heat Injury and Illness Prevention Plan – If the Proposed HIIP Rule becomes final, employers need to develop and implement a worksite HIIP Plan with site specific information that:
- describes the activities the plan covers,
- has policies and procedures to ensure compliance with the new rule’s standards, and
- identifies the heat metric the employer will use to trigger certain controls.
The Proposed HIIP Rule also requires most employers to have their HIIP Plans in writing and develop them with employees and union representatives, where applicable. Additionally, employers must designate one or more “heat safety coordinators” who would have responsibility for implementing the HIIP Plan, monitoring its effectiveness, and revising it as needed. Further, HIIP Plans must include an emergency response program with protocols and procedures to address an employee suffering from heat-related injury or illness (“HRII”).
Identifying Heat Hazards – The Proposed HIIP Rule requires monitoring the heat index at outdoor and indoor worksite locations as the basis for assessing appropriate safety controls. The rule sets parameters for the methods, timing, location, and circumstances for measuring this heat metric.
Required Controls for Initial Heat Trigger and High Heat Trigger – Under the Proposed HIIP Rule, when the heat index at worksite locations reaches 80°F (initial trigger), employers must implement a range of prescribed measures, such as providing conveniently-located cool drinking water, scheduling rest breaks in the shade or in an enclosed space with air conditioning, activating or accelerating fans or air conditioning for indoor work, and structuring acclimatization for new and returning employees to ensure gradual exposure to heat levels. When the heat index reaches 90°F (high heat trigger), employers must also implement increased employee observation, provide at least one 15 minute paid rest break every two hours, give additional warnings to employees about heat hazards, and post more warning signs for excessively high heat areas.
Heat Hazard Training – The Proposed HIIP Rule’s required training must ensure employees can: (1) understand heat stress hazards, HRIIs, and the risk factors that could cause such injuries or illnesses; and (2) recognize such injuries, know initial response measures, and implement controls to prevent HRIIs, such as water, breaks in shade and air conditioning, and acclimatization. Supervisors must receive additional training, and all employees must receive refresher training annually. The Proposed HIIP Rule also would require employers to provide supplemental training when work activities or policies change or when the employer has evidence that employees have insufficient training, such as an HRII.
Implications
If OSHA makes this Proposed HIIP Rule final, employers would have to comply with its requirements and standards or face citations for violations. Nonetheless, as with any OSHA regulation, employers can develop a compliance program best suited to the company’s business interests while still abiding by the standard. Even so, the Proposed HIIP Rule could become one more workplace standard to which employers will have to devote resources so they remain compliant.
Next Steps
Following the comment period, OSHA may modify the Proposed HIIP Rule to incorporate comments or explain why it will not incorporate certain input. Some employers will likely favor this rule because it compels competitors to follow what conscientious employers already do. Those opposed could criticize the proposed rule’s “one-size-fits-all” approach; for example, the initial and high heat triggers do not account for geographical differences (80°F has different meanings in Phoenix and Fairbanks). Regardless of an employer’s position, any comment submitted will have to account for whether the Proposed HIIP Rule falls within a reasonable interpretation of the authority OSHA has to make such rules under the OSH Act following the recent Supreme Court decision in Loper Bright. (See here for Saul Ewing’s blog post on OSHA in the wake of Loper Bright). Thus, in providing input on the Proposed HIIP Rule over the 120-day notice and comment period, employers will have to navigate a complex legal framework and would benefit from having experienced OSHA Counsel advising in that process.
