On August 30, 2024, the Occupational Safety and Health Administration (OSHA) published in the Federal Register its proposed regulations for Heat Injury and Illness Prevention in Outdoor and Indoor Settings, delivering on the Biden administration’s three-year long promise to have the agency put forward a rule to protect workers from heat related injuries and deaths. The proposed measure would be the first comprehensive federal regulation to address the recent increase in heat related emergencies occurring across a large swath of workplaces, including farms, construction sites, warehouses, and commercial kitchens.
Industry Backlash and Legal Uncertainty
Although many states have adopted or proposed their own heat safety regulations, OSHA’s proposed rules, due to their wide application and extensive requirements, have received more backlash than their state counterparts, indicating that the implementation of the rules is likely to face many challenges. The proposed regulations come in during the tail end of President Biden’s first term and are also vulnerable to an administration change where Former President Donald Trump has expressed a contrary intent to roll back on OSHA’s regulations on private industry, thereby indicating that his administration could block the rule’s implementation. Additionally, the extent of OSHA’s, as well as other federal agencies’, ability to rule make and enforce their regulations has been questioned by the Supreme Court in its decision overturning the Chevron deference in Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce, which places the proposed rule into even more uncertainty.
Scope of the Regulations
Despite this uncertainty, employers can look at the proposed rules as guidance on how to navigate changing climate patterns and the increased risk it poses to their employees’ health and safety in high heat conditions, and employers should also familiarize themselves with the proposed rules to prepare for compliance.
Who is exempt?
The first paragraph of the proposed rules exempts certain work activities from the rule’s application, and employers are exempt from the regulation to the extent that their employees perform those listed work activities. If an employer’s entire workforce only participates in the listed activities, then the employer is wholly exempt from the regulation. Employers whose workforce engages in a mix of non-exempt and exempt activities will be subject to a partial exemption where only the non-exempt worksites and activities will be subject to the rules. Below is a list of the exempted work activities:
- Remote work / “Telework”;
- Indoor sedentary work [1];
- Other indoor work where the temperature is consistently below 80 degrees;
- Firefighting/Emergency Response Activities;
- Work activities where an employee only experiences “short duration” [2] exposures at or above 80 degrees; and
- Work activities where there is no reasonable expectation of exposure at or above 80 degrees (i.e. seasonal businesses operation during the winter season).
[1] The proposed rule defines “indoor sedentary work” as a combination of the following: sitting, occasional standing and walking, occasional lifting of objects weighing less than 10 pounds. The proposed rule defines “occasional” as up to one third of the overall workday.
[2] The proposed rule defines “short duration” as 15 minutes or less in any 60-minute period.
All other activities and employers are subject to the proposed rules, which include general industry, construction, maritime, and agriculture.
Monitoring and Planning Requirements
The proposed rule requires non-exempt employers (and partially exempt employers for their non-exempt employees and worksites) to maintain a Heat Injury and Illness Prevention Plan and to consistently monitor the ambient temperature of both indoor and outdoor worksites that are subject to the regulations.
The Heat Injury and Illness Prevention Plan (HIIPP) must be site-specific and include a list of the work activities that are the subject of the regulations, the policies and procedures that are implemented to comply with the regulations, and must identify the monitoring method adopted by the employer. It must also include an emergency response plan for any heat related injury or illness, which identifies procedures on how to contact emergency services and the exact location of the worksite. The HIIPP must be written, rather than oral, for employers with more than 10 employees and must be available in a language that all employees can understand. This plan must be updated and reevaluated annually and whenever there is a workplace heat related injury or illness incident.
To comply with the rule’s monitoring requirements, employers must constantly and consistently monitor worksite temperature to identify initial heat and high heat triggers, which have been set respectively at 80 degrees and 90 degrees. The rule requires that employers monitor the temperature by hourly measurements/forecasts rather than daily ones. The rule also requires employers to use one of two heat metrics – the Wet Bulb Globe Temperature or the heat index.
Employers must keep and collect at least six months of data regarding their monitoring, HIIPP, and heat injury incidents in case of an OSHA investigation or inquiry. Additionally, employees must receive annual training that informs them of their rights under the proposal, as well as training on the procedures and protocols surrounding heat related incidents.
Outdoor Work Sites
For employers with outdoor work areas, the proposal offers two methods of monitoring the temperature:
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- Track the local heat index forecasts provided by the National Weather Service or other reputable source by entering accurate location information[3]; OR
- Utilize their own monitoring devices set up at or as close as possible to the work area.
[3] The proposed rule recommends that employers use the OSHA-NIOSH Heat Safety Tool application available on smart phones.
Indoor Work Sites
For indoor work areas, the proposal requires employers to identify areas that they reasonably expect to reach the initial or high heat triggers and to consistently monitor those areas with monitoring devices set up at or as close as possible to the area. Each work area must have its own monitoring plan and reconfigure the monitoring plan as the work area changes in capacity or function.
Procedures/Requirements at the Initial Heat Trigger (IHT)
If measurements/indexes are indicating that the ambient temperature of the work site is at or above the Initial Heat Trigger (IHT), which is 80 degrees, then employers are required to implement the following controls:
- Water: Employers must provide cool, potable water equating to one quart per employee per hour in a spot that is readily accessible by employees.
- Break Areas: Employers must provide break areas that can accommodate the number of employees likely to be on break at the same time (not the entire workforce). If the break area is outdoors, or exposed to open air, then the employers only need to supply shade. But if the break area is indoors, it must be air conditioned so that the ambient temperature falls below the IHT.
- Rest Breaks: Employers must allow and encourage employees to take paid rest breaks at the break areas, and employees must be in charge of deciding the timing and frequency of the breaks unless the employee’s position or the nature of the work poses a risk to the health and safety of the overall worksite or equipment to allow the employee to leave without a supervisor’s approval, in which case, employers would be allowed to monitor and approve of the rest breaks. Rest breaks do not have to be tied to a specific heat stress symptom and are not subject to any time limit. Also, slowing down the pace of work does not count as a “rest break” for the purposes of the rule.
- Communication: Employers must provide employees with an accessible two-way communication system in which employees can contact their supervisors in case of emergency.
- Fan Use: Employers must monitor and assess their fan usage and stop fan use when it becomes harmful. The rule finds fan use to be harmful after ambient temperatures exceed 102 degrees within certain humidity thresholds, and the proposal provides a table for reference as to the humidity ranges with corresponding temperatures within which fan usage becomes harmful.
These controls are to be implemented during the time in which the ambient temperature, as measured by the employer’s preferred method and index, is at or above the Initial Heat Trigger – not for the entire workday. Additionally, for indoor work areas, employers must implement some form of temperature control, such as ceiling fans or swamp coolers, in order to address the heat risk.
Procedures/Requirements at the High Heat Trigger (HHT)
If the measurements/indexes are indicating that the ambient temperature of the work site is at or above the High Heat Trigger (HHT), which is 90 degrees, then employers are required to implement both the procedures listed above as well as the following additional procedures:
- Compulsory Breaks: Employees must be required to take at least one paid 15 minute break every two hours.
- This requirement would be satisfied if the employee took a rest break, as listed in the previous section, at his own discretion and the break lasted fifteen minutes. However, if the employee feels the need to take additional rest breaks, they must be encouraged and allowed to under the IHT’s rest break requirements, which are still in place during a HHT. Additionally, for both types of breaks under the rule, the employee cannot be asked to do other sedentary tasks.
- Observation: The rule requires that when the ambient temperature is at HHT, employers must implement one of the following methods to observe and monitor their employees for heat stress symptoms:
- “Buddy System”: Each employee is assigned another employee to observe during the workday at the same work site.
- Supervisors: Supervisors can also monitor employees for symptoms, however, a single supervisor can only be tasked with monitoring a maximum of 20 employees at any given time.
- Employees without Co-Workers or Supervisors: For employees that work alone at a work site without another coworker or supervisor, the employer must check in on the employee through the HHT period utilizing the two-way communication and must receive periodic assurances from the employee to confirm his or her wellbeing.
- Hazard Alert: During the HHT period, the employer must send or post alerts that advise employees of the risk, as well as their rights. The alert must remind employees of their right to take breaks and must remind employees to drink water.
No Cost to Employees & Acclimatizing New/Returning Employees
The proposal states repeatedly that the implementation of these rules and procedures must come at no cost to the employees. This requirement spans almost the entirety of the regulation and shifts the entire cost of addressing heat related injuries and incidents to the employers.
All the required and discretionary breaks under the proposed rule must be paid and cannot be deducted from the employee’s pay, and this requirement has fueled many of the concerns against the regulation, with employers citing a worry that such discretionary standards could lead to employee abuse.
Alongside the concerns regarding the break-policy of the proposed rule are concerns for the costs associated with the rule’s acclimatization policy for new and returning employees.
Acclimatization Requirements
The proposed rule requires that new and returning employees become acclimatized to their working environments if they are entering, or reentering, the workplace while the temperature is at the IHT or above.
The proposal offers two options for acclimatization:
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- Gradually expose the employee to working environment by allowing them to spend only 20% of their workday in the IHT, and increasing that exposure by 20% each following day; OR
- Implement the entire IHT and HHT requirements for that employee during the acclimatization period.
The rule emphasizes that either option shall not come at a cost to the employee, which means that for employers implementing the “gradual exposure” option, the employee cannot be relieved from duty after that 20% exposure. If the employee is sent home after the initial exposure, the employer must pay the employee for a full day of work and cannot deduct the amount from the employee’s paid leave. The employer may, however, assign the employee to different tasks or different work sites for the rest of the working day so long as the employee would not be subject to IHT or HHT conditions at that worksite or activity.
A small exception exists for this acclimatization requirement if the employee had worked in a similar condition, performing a similar task in the last 14 days preceding his or her start date. For this exception to be met, the tasks must be:
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- Reasonably Similar: The proposed rule explains that picking watermelons, as opposed to picking tomatoes, would not be considered a similar task. The conditions must also be reasonably similar, meaning that the employer must confirm that the employee’s previous worksite has a similar heat index to his new work site.
- Actually Performed: The employee must have worked at a similar site, performing a similar task for at least 2 hours a day on a majority of the preceding 14 days.
- Vetted by Employer: The employer must question the employee and gather sufficient information on the work conditions and activities before determining that this exception applies to the employee in question.
What Steps Should Employers Take?
Currently, OSHA is accepting comments for the proposal on the Federal Register until December 30, 2024. The rule’s final implementation will likely hinge on the results of the next election, and ultimately, on any challenges it may face in the courts in light of the Supreme Court’s decision in Lopez. However, as incidents surrounding heat related injuries and illnesses rise in workplaces across the country, employers can use this proposed rule to assess and reflect on their own heat safety protocol. The proposed regulation by OSHA ultimately follows in the footsteps of many state regulations, such as those in Washington, Colorado, and California, and therefore, likely indicate the trajectory of how these regulations may develop as the weather patterns become more volatile.
If you have any questions regarding OSHA’s Heat Injury and Illness Prevention in Outdoor and Indoor Settings, please contact the Labor & Employment attorneys at Lindabury, McCormick, Estabrook & Cooper, P.C.