In a flurry of executive orders starting at inauguration, the Trump White House has dramatically shifted administrative agencies’ operations, including those of the Occupational Safety and Health Administration (OSHA) and its implementation of the pending “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings” rule (the “HIIP Rule”). Introduced six months ago via a notice of proposed rulemaking, the HIIP Rule sent employers preparing both comments to the rule and heat hazards plans, the latter an anticipated requirement under the new rule. Recent executive orders and related maneuvers, however, have put the HIIP Rule essentially on hold but have not necessarily eliminated it. Consequently, in preparing for the rule’s possible implementation, employers need to assess the likelihood of the rule’s enforcement, the risks of noncompliance, and the costs to implement required heat hazard protection programs. Making such determination demands understanding how the uncertainty over the rule emerged.
Following years of OSHA discussing heat hazards and heat injury prevention with stakeholders across multiple industries, on July 2, 2024, OSHA proposed the HIIP Rule, which would require all employers under OSHA jurisdiction (including those in the industrial, construction, maritime, and agriculture sectors) to adopt a plan to evaluate and control workplace heat hazards to protect employees from heat-related injuries and illnesses. A Notice of Proposed Rulemaking was published in the Federal Register on August 30, 2024, and the proposed rule’s comment period closed on January 14, 2025.
Less than a week later, President Trump issued a presidential memorandum, “Regulatory Freeze Pending Review,” that directed “all executive departments and agencies to . . . not propose or issue any rule in any manner . . . until a department or agency head appointed or designated by the President . . . reviews and approves the rule.” This memo effectively stopped all ongoing federal rulemaking, thus leaving the HIIP Rule’s future uncertain until OSHA has a new leader.
On February 11, 2025, the Senate received the nomination of David Keeling for Assistant Secretary of Labor for Occupational Safety and Health, the position to lead OSHA. Mr. Keeling spent much of his career in the private sector in the ground shipping industry, starting as a UPS package handler then moving into safety leadership roles, including his most recent position as the Director of Road and Transportation Safety at Amazon. With both executive and workforce experience, few can determine whether, as OSHA’s head, Keeling will bring a more pro-employer perspective than prior OSHA leadership or a greater insight into workers’ needs. Given Keeling’s mixed perspectives and OSHA’s previous diminished role under the first Trump administration, OSHA’s priorities will likely shift, which could impact the HIIP Rule’s fate. As the Trump administration has yet to take any concrete steps towards eliminating the rule, OSHA could end up: (a) issuing it in its current or similar form, (b) scrapping it altogether, or (c) revising it to reduce its burden on employers, but still preserve employee protections.
Regardless of the HIIP Rule’s uncertain future, the OSH Act’s general duty clause (“GDC”) still obligates employers to guard against heat injury and illness hazards as part of providing a workplace free from recognized hazards causing or likely to cause employees death or serious harm. Because under the GDC OSHA had previously cited employers for heat hazards, the proposed HIIP Rule provides a more concrete guideline for OSHA to use the GDC this way. On the other hand, OSHA may face judicial scrutiny for reading the OSH Act in this manner, because under a recent Supreme Court decision, courts no longer must defer to agency interpretations of statutory language.
Given all this uncertainty surrounding the HIIP Rule and OSHA’s policy direction overall, regulated employers should consider carefully how best to proceed with their compliance programs for heat hazard standards. Such analysis includes regularly monitoring the HIIP’s status and OSHA’s policy initiatives to determine the likelihood OSHA will be enforcing any type of heat hazard standard. Next, employers will need to factor the extent to which they face risks from noncompliance with a currently uncertain standard. Finally, employers will need to assess the cost of implementing heat hazard programs, including those the proposed HIIP could require. Despite this calculus, employers always have a reasonable responsibility to place employee safety over profit. In light of all these factors, making such business analysis warrants consulting counsel experienced in handling OSHA compliance and enforcement issues.
