OSHA issues proposed workplace heat exposure standard

By David Dubberly
Maynard Nexsen PC.

 

On July 2, 2024, the Occupational Safety and Health Administration (OSHA) issued its proposed national heat standard, titled Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.  In a preamble, OSHA, which has been working on the standard for three years, noted that “[h]eat is the leading cause of death among all weather-related phenomena in the United States.”

If the proposed standard is finalized and survives a legal challenge, it would require employers to develop a Heat Injury and Illness Prevention Plan (HIIPP) with site-specific information to identify and monitor excessive heat exposure in the workplace and create plans to address it.

Heat Triggers

A key requirement of the proposed standard is that employers implement specific controls if the temperature reaches certain “triggers.”

• If the “initial heat trigger” (a heat index of 80°F) is reached, employers would have to provide workers with cool drinking water in quantities of one quart per employee per hour; break areas with shade for outdoor work sites; break areas with fans or air conditioning for indoor work sites; and “paid rest beaks … if needed.”
• If the “high heat trigger” (a heat index of 90°F) is reached, employers would also have to provide employees with hazard alerts pre-shift or upon determining the trigger has been met. Hazard alerts would need to cover the importance of drinking water; employees’ right to take breaks; how to seek help for a heat emergency; and the location of break areas and drinking water.  Employers would also have to monitor employees for signs of heat illness and provide “minimum 15-minute paid rest breaks at least every two hours” in break areas with cooling measures.

These requirements would not apply to work areas “for which there is no reasonable expectation of exposure at or above” 80°F.

HIIPP Contents

The HIIPP to be developed by employers would have to designate one or more heat safety coordinators responsible for implementing and monitoring the plan.  It would also need to include all policies and procedures needed for the employer to comply with the standard, including those for responding to an employee experiencing signs of heat illness.  The proposed standard sets out a list of several required procedures for responding to such an employee.

In addition, the HIIPP would need to contain a heat emergency response plan that includes, among other things, a list of emergency phone numbers and a description of how employees can contact a supervisor and EMS.

The HIIPP would have to be in writing for employers with 10 employees or more and “readily available at the work site to all employees … in a language each employee … understands.”

Other Requirements

Training: All employees expected to perform work at or above 80°F would have to be given initial and annual refresher heat safety training that covers a detailed list of heat illness topics.  Specific training would also be required for supervisors and heat safety coordinators.

HIIPP Review: Employers would also be required to “review and evaluate the effectiveness of the[ir] HIIPP whenever a heat-related illness or injury occurs that results in death, days away from work, medical treatment beyond first aid, or loss of consciousness, but at least annually.”

Employee Input: Employers would be required to “seek the input and involvement of non-managerial employees and their representatives, if any,” when developing the HIIPP.

Next Steps

The proposed standard will be published in the Federal Register in the coming days.  After that, the public will have 120 days to submit comments.  OSHA will then review the comments and hold one or more public hearings to discuss them before publishing the standard in final form.  Once the standard becomes final, it could face a court challenge on the basis that it imposes inflexible compliance obligations that are not workable for some employers and work sites.

Employers should note that even if OSHA’s proposed heat standard does not survive in court, it is worth considering as a menu of options to implement in order to avoid General Duty Clause citations for exposing employees to heat hazards.  OSHA continues to prioritize heat-related inspections under its National Emphasis Program on heat hazards, launched in 2022, using the Occupational Safety and Health Act’s General Duty Clause for enforcement.  Employers may consider evaluating their current heat illness prevention plans and training programs to determine if any measures set out in the proposed standard may strengthen their ability to keep workers safe.

Please contact Maynard Nexsen’s Employment & Labor Law Group for additional information about workplace safety and health.

 

David Dubberly is a labor and employment lawyer with Maynard Nexsen PC.