Last summer, we described efforts of the Occupational Safety and Health Administration (OSHA) and several states to protect workers from heat stress hazards. In July of this year, OSHA issued a notice for a proposed rule, “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings,” aimed to protect workers from the significant health risks associated with extreme heat. The proposed rule follows years of attempts to regulate exposure to heat under the General Duty Clause (Section 5(a)1) of the OSHA Act, which requires employers to provide employment and places of employment “free from recognized hazards that are causing or likely to cause death or serious harm to employees.” The term “hazard” in the statute has been broadly interpreted by OSHA to include heat-related hazards.¹ Several states operating OSHA-approved state plans, including California, Colorado, Minnesota, Oregon, and Washington, have already adopted standards that specifically address heat exposure. If finalized, the proposed rule would be the first of its kind by OSHA and affect at least 36 million indoor and outdoor workers. It could also have significant ramifications for multi-employer work sites under OSHA’s current enforcement initiatives.

The proposed rule, which had been urged by public health advocates, has been in the works for more than two years. Its release, while unofficial at this point, comes on the heels of a heat wave across the United States this summer that resulted in heat alerts that affected more than 60 million Americans for several days.

The proposed standard would broadly require employers to evaluate and control heat hazards for employees. States operating their own state plans would be required to have or adopt a rule that is the same as or more stringent than OSHA’s rule. The rule is complex, but some key components are highlighted below.

The proposed standard would apply to all employers that perform outdoor and indoor work in all general industries, construction, maritime, and agriculture sectors in which there is a reasonable expectation of exposure to temperatures exceeding certain thresholds. Some work would not be covered, such as short duration work of 15 minutes or less per hour, emergency response, work indoors at temperatures below 80 degrees, and telework.

A key component of the proposed rule is the adoption of two national heat index thresholds accounting not just for temperature, but also humidity. At an “initial heat trigger” heat level, meaning a heat index of 80 degrees or a wet bulb globe temperature equal to the NIOSH Recommended Alert Limit, employers would be required to implement various protocols, including providing workers with drinking water, rest breaks, and break spots with shade, fans, or air conditioning or effective heat barriers for radiant heat, and maintaining effective communication with employees. Employers would also need to create an acclimatization plan for new and returning workers to adjust to the heat by permitting a gradual increase in workload. At a “high heat trigger” heat level, meaning a heat index of 90 degrees or a wet bulb globe temperature equal to the NIOSH Recommended Exposure Limit, additional protections would set in, including monitoring for heat illness symptoms, mandatory 15‑minute paid breaks every two hours, heat-related alerts to employees, and checking in every few hours on employees who work by themselves or the establishment of a buddy system.

Other requirements imposed by the proposed rule include development and implementation of site-specific heat injury and illness prevention plans, as well as company-specific policies regarding heat safety; comprehensive and detailed training for employees on heat stress hazards, signs, and symptoms; and new heat illness recordkeeping requirements.

The proposed rule has received criticism, including that it would be burdensome and expensive to implement, and redundant, since some employers already have policies in place to manage high-heat working conditions. The construction industry, in particular, has sought removal from the proposed requirements or a separate rule for its workers, because construction sites are unique, typically include both indoor and outdoor work, and are managed by more than one employer. Under OSHA’s current enforcement scheme relating to multi-employer worksites, OSHA might attempt to hold “controlling” employers such as general contractors responsible for alleged violations by subcontractors. Particularly given the complexity of the proposed rule, the potential of citations issued to controlling employers could be problematic and require extensive and burdensome coordination among employers performing varied operations on site.

Considering the proposed rule is subject to a comment period with a public hearing prior to final publication, review by Congress under the CRA, the prospect of legal challenges, and the upcoming election, it is possible the rule may be changed or may never be implemented. In the interim, because OSHA can be expected to continue its focus on heat-related hazards, employers should review and update their existing programs or develop programs to address work in hot environments. Employers may also consider the following actions.

• OSHA on-site consultation program. You can request a no-cost, confidential visit with a consultant who can help identify and address hazards. OSHA will not fine or issue citations during the consultation and can qualify you for a one-year exemption from certain inspections.
• Establish a prevention plan. Consider additional break schedules; provide hydration stations; install air conditioning, shade, and fans where possible; invest in PPE like reflecting clothing and cooling wraps or jackets; and adjust schedules to avoid work during warmer parts of the day.
• Develop workforce training. Managers and employees alike need to be able to assess the dangers of extreme heat, including exacerbating factors in the environment, like humidity and airflow, PPE or clothing, the body’s ability to regulate its temperature, and the presence of excess heat sources.
• Understand personal risk factors. Employees should understand factors that can make heat-related illnesses worse, like obesity, general fitness levels, drug and alcohol intake that can affect the body, and chronic health conditions.

[1] Very generally, a General Duty Clause violation exists if OSHA can prove that (1) the employer failed to keep the workplace free of a hazard to which its employees were exposed; (2) the hazard was recognized; (3) the hazard was causing or was likely to cause death or serious physical harm; and (4) a feasible and useful method to correct the hazard was available.