To kick off the 4^th of July Celebration early, today, July 2, 2024, OSHA released an unofficial version of its Indoor and Outdoor Heat Illness Prevention Notice of Proposed Rulemaking (“NPRM”). An official version will be published in the Federal Register in the next few days, maybe even tomorrow. Once published in the Federal Register, the regulated community will have a 120-day period to submit public comments to OSHA’s rulemaking docket.

OSHA also issued a news release on the proposal, in which the Assistant Secretary of Labor for OSHA, Doug Parker, announced:

“Workers all over the country are passing out, suffering heat stroke and dying from heat exposure from just doing their jobs, and something must be done to protect them…. Today’s proposal is an important next step in the process to receive public input to craft a ‘win-win’ final rule that protects workers while being practical and workable for employers.”

The White House also issued a fact sheet on President Biden’s new actions to protect workers and communities from extreme weather, which leads off with information about OSHA’s proposed Heat Illness Rule.

What is in OSHA’s Proposed Indoor and Outdoor Heat Illness Rule

We are carefully reviewing the lengthy NPRM package as we speak, but wanted to share with you all some initial impressions right away:

1. 1. Under the proposed rule, the definition of “initial heat trigger” is “heat index of 80°F or a wet bulb globe temperature equal to the NIOSH Recommended Alert Limit.” This is a significant improvement since, previously, OSHA was considering an initial temperature trigger using a forecast set at 76°F heat index.
   2. Under the proposed rule, the definition of “high heat trigger” is “heat index of 90°F or a wet bulb globe temperature equal to the NIOSH Recommended Exposure Limit.” This too is a significant improvement as OSHA was previously considering a high heat temperature trigger using a forecast set at 83°F heat index.
   3. OSHA will require employers to develop and implement comprehensive, site-specific written Heat Injury and Illness Prevention Plans (“HIIPP”) that must be reviewed and evaluated at least annually. Employers must also seek the input and involvement of non-managerial employees and their representatives in the development and implementation of the HIIPP.
   4. At indoor work sites, OSHA will require employers to conduct special heat-related hazard assessments to identify work areas where there is a reasonable expectation that employees are or may be exposed to heat at or above the initial heat trigger, and develop and implement monitoring plans covering each identified work area.
   5. Requirements at or above the initial heat trigger:
      • • Provide access to potable drinking water. OSHA kept many of the prescriptive drinking water requirements it was previously considering. That is, the 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 break areas. These differ between indoor v. outdoor work sites.
        • For indoor work areas, OSHA kept much of its language regarding engineering controls that it was previously considering, namely, that employers must provide one of the following: (i) increased air movement, such as fans or comparable natural ventilation, and, if appropriate, de-humidification; (ii) air-conditioned work area; or (iii) in cases of radiant heat sources, other measures that effectively reduce employee exposure to radiant heat in the work area (e.g., shielding/barriers, isolating heat sources). It also added some brand new language about evaluation of fan use.
        • Implement acclimatization protocols for new and returning workers. OSHA appears to have eliminated some of the more flexible acclimatization options that it was previously considering. However, it did retain and perhaps enhance an exception where employers can demonstrate that the employee consistently worked under the same or similar conditions as the employer’s working conditions within the prior 14 days.
        • Provide rest breaks. It appears that OSHA left this more open-ended than it was previous considering. Employers must allow 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. Requirements at or above the High Heat Trigger include:
      1. • More prescriptive rest breaks;
         • Observation for signs and symptoms;
         • Hazard alerts; and
         • Signage for excessively high heat indoor work areas.
   7. Requirements for heat illness-related emergency response and planning
   8. Comprehensive and recurring heat illness related training; and
   9. New heat illness-related recordkeeping requirements.

CMC’s Heat Illness Rulemaking Coalition

Conn Maciel Carey’s national OSHA Practice has been leading a diverse coalition of national employers and trade associations to work on OSHA’s Heat Illness Rulemaking from its initial stage back in 2021, through an Advanced Notice of Proposed Rulemaking (“ANPRM”), meetings of the National Advisory Committee on Occupational Safety and Health (“NACOSH”) Heat Working Group and the full NACOSH Committee, and a comprehensive Small Business Review cycle. The coalition has been comprised of interests from many industries, from construction and energy, to manufacturing, petroleum refining and chemical manufacturing, retailers and grocers, utilities, warehousing, and many more. We have had a prominent “seat at the table” in this rulemaking from the get-go.

During what we called “Phase One” of OSHA’s heat illness rulemaking, in January of 2022, we submitted comments to the ANPRM, testified at each of the numerous meetings of the NACOSH Heat Working Group and the full NACOSH Committee, provided testimony at OSHA’s May 3, 2022 Heat Injury and Illness Stakeholder Meeting, and made numerous written submissions to NACOSH and OSHA throughout the NACOSH process (see, e.g., February 15, 2022 comments, and June 23, 2022 comments).

During “Phase Two,” we participated very actively in OSHA’s Small Business Regulatory Enforcement Fairness Act (“SBREFA”) process for this rulemaking. We put forward two Small Entity Representatives (“SER”) from among our coalition members in the SBREFA process, which allowed all members of our coalition to get a first look at proposed draft regulatory text and to provide input into the ultimate Small Business Advocacy Review (“SBAR”) Panel Report developed by the SBAR Panel (made up mostly of OSHA representatives). We submitted comments to the docket on December 22, 2023, encouraging OSHA to heed the recommendations in the SBAR Panel Report, which report largely reflected our recommendations.

Final Phase of the Employers Heat Illness Prevention Rulemaking Coalition

Through our recent OSHA rulemaking coalitions, including this heat illness rulemaking, we have had a very positive impact on OSHA standards and regulations over the last decade. We have submitted comprehensive written comments to the rulemaking records, testified at rulemaking hearings, and advocated directly to OSHA and the White House, through its Office of Management and Budget, in informal and formal 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.

To that end, CMC invites you to renew your membership or join for the first time to participate in the “Final Phase” of Employers Heat Illness Prevention Rulemaking Coalition. The coalition is a fee-based, organization-anonymous collection of employers and trade groups that support our efforts to advocate to OSHA for the most workable and reasonable Heat Injury and Illness Prevention Standard possible. This phase of the rulemaking will carry us from now through the day OSHA issues a Final Rule, which, depending on the outcome of the presidential election in November, will likely be by Summer 2025.

We are aiming to aiming to provide a detailed summary of the proposed rule at a coalition kickoff meeting in the next few weeks.

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