“Excessive.” “Feels Like.” “Heat Dome.” All of these words and phrases come up in almost every conversation these days. With another summer of record heat upon us, OSHA continues to move forward with a proposed heat standard. OSHA just last week reopened the official comment period for its proposed rule, which will now extend through December 23, 2023. OSHA also announced last week that the administrative meeting period with small businesses for the proposed rule will begin in September.
Current State of Rulemaking
To be clear, there still is no OSHA rule or standard as to prohibited heat exposure. Historically, OSHA’s employer citations for heat exposure have been based upon the “General Duty Clause,” the provision of the Occupational and Safety Health Act that imposes the general duty on all employers to furnish “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” This is OSHA’s “catch all” when no specific standard exists. Citations are likely in egregious situations and, of course, when employee fatalities or in-patient care are involved.
Although there is no heat standard in place, the current administration began work on implementing a standard in October 2021. This was called an Advance Notice of Proposed Rulemaking. This ANPRM is quite detailed and begins with the observation that “heat is the leading cause of death among all weather-related phenomena.” OSHA then goes on for 35 pages describing the basis for a rule and the elements it should contain. In the last two years since 2021, OSHA’s effort has proceeded through only approximately half of the steps required to implement a new rule, so there is much more to come. Just last week, on August 24, OSHA released for discussion in the reopened comment and small business meeting periods an outline of potential options for a proposed rule in follow up to the ANPRM.
Contents of Proposed Rule
So, let’s get down to it – what are some of the elements that we can expect to see in the final rule? To begin with, expect safety precautions and procedures to be triggered at temperatures right around 80 degrees. This temperature range obviously is much lower that what normally is referred to as “excessive.” Then, aspects of the rule will include:
- Drafting a Heat Injury and Illness Prevention Plan (HIIPP) for all work sites
- Identifying when and where heat hazards exist
- Implementing heat mitigation engineering measures (fans, ventilation, barriers, a/c in mobile equipment)
- Providing easy access to water throughout a shift
- Allowing heat acclimatization over a period of workdays
- Scheduling rest breaks
- Requiring cool-down periods
- Formulating rescue and medical care procedures
- Conducting training
- Communicating on multi-employer work sites
Although there is no OSHA rule in place yet, since 2016 there has existed criteria for a recommended standard that was issued by the National Institute for Occupational Safety and Health. This criteria is almost 200 hundred pages long. In it, NIOSH provides an updated, detailed analysis of the biological effects of heat, the measurement and control of heat stress, and proper medical monitoring, as well as an in-depth list of recommendations from NIOSH. This is a great resource for heat safety planning prior to the finalization of an OSHA standard.
For OSHA’s heat rule to be fully developed, many more steps have to be taken. It still could be a matter of years before a final rule is issued. In the meantime, however, OSHA can continue to cite under the General Duty Clause mentioned above. OSHA has conducted thousands of heat-related investigations, and certainly OSHA will investigate any fatality or hospitalization that appears to be the result of a workplace heat exposure event. Some states, especially those on the West Coast, also have state standards already in place that must be followed. It thus is advisable to begin a deliberate process toward a comprehensive heat and dehydration-related safety plan and practice in your workplace even before any additional requirements are issued by OSHA.