Unsurprisingly, as temperatures rise, activity on OSHA’s Outdoor and Indoor Heat Illness Prevention rulemaking is heating up, too. On May 8, 2024, OSHA announced that it is moving closer to publishing a proposed Heat Illness Rule for U.S. workers in both outdoor and indoor settings. Indeed, timing-wise, Acting Labor Secretary Julie Su told lawmakers at a May 1^st House oversight hearing that OSHA expects to release a Notice of Proposed Rulemaking advancing its long-awaited heat injury and illness prevention standard “later this year.”

Background

The good news is, even before a proposed rule has been issued, we are already seeing the effective work of our employers rulemaking coalition pay off. As a reminder, Conn Maciel Carey has organized and led a diverse coalition of national employers and trade associations representing 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 on an Advanced Notice of Proposed Rulemaking (“ANPRM”), testified at each of the numerous meetings of the National Advisory Committee on Occupational Safety and Health (“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/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”) stage of the 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). The report contains recommendations for OSHA of possible approaches to regulatory action that may minimize impacts on small entities. Of course, while focused on small entities, the report has significant implications for Industry as a whole.

We received the background materials from OSHA in August of 2023, before the general public, worked closely with our SERs to help them prepare for their participation in two separate SBAR panel meetings, on September 18^th and 19^th of last year, and submitted extensive written SER Comments (an opportunity afforded only to SERs) in October. We were very glad to see that our SER Comments were heavily quoted throughout the SBAR Panel Report. It was clear that the SBAR Panel really heard us, with numerous recommendations to OSHA that were similar or identical to what we submitted in our SER Comments.

After the SBAR Panel Report was issued, we also solicited feedback from our coalition members and submitted another set of public comments about the SBAR Panel Report to further advance our positions, both as they relate to the findings and recommendations contained in the Report, and more broadly on other topics of interest and/or concern. We submitted those comments to the docket on December 22, 2023, encouraging OSHA to heed the recommendations in the SBAR Panel Report (which largely reflected our recommendations). Our positions there included:

• • The Standard Should Not Cover Indoor Worksites.
  • The Standard Should be Flexible, Performance-Oriented, and Centered on Training.
  • The Standard Should Not Apply to Emergency Operations as Interpreted in the Broadest Sense or to Drivers With Air-Conditioned or Fan-Ventilated Vehicles.
  • The Elements in the Regulatory Framework are Technologically and/or Economically Infeasible (That is, OSHA’s Time/Cost Estimates are Too Low).
  • OSHA Should Add Flexibility to Any Heat Injury and Illness Prevention Program (“HIIPP”) Requirement, Recognize That HIIPPs are Mitigation Programs, and Eliminate Any Vague Requirement That Programs be Reviewed to Ensure Ongoing Effectiveness.
  • The Standard’s Metric for Determining Heat Exposure Should be Ambient Temperature or Heat Index, Not Wet Bulb Globe Temperature.
  • The Standard’s Temperature Threshold Should be Simple, Science-Based, and Account for Local Environmental Conditions.
  • The Standard Should Not Require Employers to Collect Information or Inquire About Individual Risk Factors.
  • To the Extent the Standard Applies to Indoor Environments, the Standard Should Not Include Requirements for Conditioned Air, or Combination of Air Movement and Humidity Control.
  • To the Extent the Standard Includes Requirements for Rest/Breaks, They Should be Flexible.
  • Hydration Requirements Should be Focused on Making Cool Potable Water Readily Accessible and Training Employees on Dehydration Hazards.
  • The Standard Should Provide Flexible Acclimatization Requirements and Allow for Self-Managed Acclimatization.
  • The Standard Should Provide Flexibility Regarding Employee Monitoring Requirements and Limit Supervisor Responsibilities to Circumstances Where Employees Report Signs or Symptoms of Heat Illness.
  • The Standard Should Not Include Any Requirements Regarding PPE or the Multi-Employer Worksites, But Should Keep the Section on Additional Administrative Controls Broad and Open-Ended.
  • To the Extent that There Are Any Recordkeeping Requirements, They Should be Limited to Training Records Only.

Current Status

On April 24, 2024, OSHA presented the basic structure of an Outdoor and Indoor Heat Illness Prevention Standard at a meeting of the Advisory Committee on Construction Safety and Health. See OSHA’s summary document and presentation slides. That Committee, which advises the agency on safety and health standards and policy matters, unanimously recommended OSHA move forward expeditiously on a Notice of Proposed Rulemaking (“NPRM”).

Importantly, the basic structure differs from the initial regulatory framework that OSHA presented during the SBREFA phase of the rulemaking in critical ways. For example, as we recommended, OSHA increased the initial and high heat temperature triggers at which certain controls must be implemented. Previously, OSHA was considering an initial temperature trigger using a forecast set at 76 degrees Fahrenheit heat index, but now it appears to be set at 80 degrees Fahrenheit heat index. Similarly, where in the initial regulatory framework, OSHA was considering a high heat temperature trigger using a forecast set at 83 degrees Fahrenheit heat index, it appears to now be set at 90 degrees Fahrenheit heat index. These are positive changes that are a direct result of our coalition’s efforts.

Unfortunately, in other respects, OSHA appears to be holding firm or moving the wrong direction. For example, the agency has not reconsidered accounting for local environmental conditions, eliminating prescriptive drinking water volume requirements, providing flexible options for rest breaks, or limiting supervisor responsibilities for monitoring employee signs and/or symptoms of heat illness. So, we still have work to do in this upcoming “Final Phase” of the rulemaking. Indeed, this will be the last opportunity to get OSHA to hear us and correct course.

Final Phase of the Heat Illness Prevention Rulemaking

As you may know, through our recent OSHA rulemaking coalitions, including this 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 OMB 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.

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

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

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