OSHA Proposed Rule-Making: Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings
By: Debra Fowler, SHRM-CP | Director, Compliance & Policy
The Occupational Safety and Health Administration (OSHA) published a proposed national heat standard, Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings, on July 2, 2024.
This proposed standard, currently published as the unofficial version, Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings - NPRM (osha.gov), has been in the works for several years and includes general requirements for all covered employers and additional requirements when temperatures reach or exceed certain temperatures, triggering a “high heat” rule.
OSHA’s proposed rule cites heat as “the leading cause of death among all weather-related phenomena in the United States,”
and that the proposed rule would “substantially reduce the risk posed by occupation exposure to hazardous heat by clearly setting forth employer obligations and the measures necessary to effectively protect exposed workers.”
The proposed rule identifies two (2) applicable heat triggers and provides two (2) measurements of temperature that can be used: either “wet bulb globe” or “heat index”:
Initial Heat Trigger of 80 degrees Fahrenheit
High Heat Trigger of 90 degrees Fahrenheit
Vocabulary
Wet Bulb Globe
Wet bulb globe temperature is measured using humidity, wind speed, solar radiation/cloud cover, sun angle, and air temperature – usually measured in direct sunlight.
Heat Index
Heat index temperature is measured by air temperature and humidity – usually measured in the shade.
The proposed rule allows employers to choose either temperature measurement for their compliance efforts.
Employer Requirements
The proposed rule includes employer requirements to:
1. Create a plan
Create a plan to address excessive heat exposure for both indoor and outdoor work areas, called a Heat Injury and Illness Prevention Plan (HIIPP).
The plan would need to be reviewed and evaluated on an annual and heat-related incident basis.
2. Identify heat hazards
Identify heat hazards in both indoor and outdoor settings, and to develop a plan for monitoring temperatures using the measurement options listed above, mitigating risks to employees, including providing water, breaks, identifying symptoms of heat-related illness, actions to take when an employee is experiencing signs and symptoms of heat-related illness or injury, and develop training to cover these topics.
Employers would need to develop the plan in collaboration with the employees that work in these conditions.
3. Obtain Control Measures
Employers would need to have control measures in place for the initial heat trigger and high heat trigger scenarios.
Initial Heat Trigger/80 Degrees Fahrenheit employers should provide:
cool drinking water;
break areas with cooling measures;
indoor work area controls;
acclimatization protocols for new and returning unacclimatized employees;
paid rest breaks if needed to prevent overheating; and
regular and effective two-way communication.
High Heat Trigger/90 Degrees Fahrenheit employers should provide:
mandatory rest breaks of 15 minutes at least every;
two hours (unpaid meal break may count as a rest break);
observation for signs and symptoms of heat-related illness;
a hazard alert to remind employees of key parts of the HIIPP; and
warning signs at indoor work areas with ambient temperatures that regularly exceed 120°F.
4. Develop and Implement a heat emergency response plan
Develop and implement a heat emergency response plan for employees experiencing signs and symptoms of heat-related illness.
5. Create a training program
Create a training program for employees, supervisors, and any safety personnel. This training would be required for new employees at time of hire, annually, if any elements of the HIIPP change, and post-heat-related injury or illness.
6. Maintain records of indoor heat-monitoring data.
7. Provide all of the above at no-cost to employees.
OSHA has published a Fact Sheet of the proposed standard: Proposed Rule: Heat Injury Prevention in Outdoor and Indoor Work Settings (osha.gov)
Employer Next Steps
The best thing for employers to do at this point is to wait and see what challenges to the rule come up.
At this time, the rule hasn’t yet been officially published, but when it is, there will be a 120-day comment period for the general public to submit written comments to OSHA. It is anticipated that the rule will be published on the Federal Register in August 2024.
Employers should submit their written comments at that time to voice any concerns they may have regarding the proposed rule.
In light of the recent U.S. Supreme Court ruling in Loper Bright Enterprises v. Raimondo which overturned the Chevron deference, it is likely this rule will be challenged. OSHA provides rationale for its authorization to propose such a standard by referring to the Occupational Safety and Health Act of 1970, 29 USC 651 et seq. (OSH Act or Act) stating the Act “authorizes the agency to issue safety or health standards that are ‘reasonably necessary or appropriate’ to provide safe or healthful employment and places of employment (29 USC 652(8)).”
If challenged, it will be up to the courts to decide whether OSHA’s proposed rule fits the definition of “reasonably necessary or appropriate.”
The best thing for employers to do at this point is to wait and see what challenges to the rule come up.
Additional resources:
Biden-Harris administration announces proposed rule to protect indoor, outdoor workers from extreme heat | Occupational Safety and Health Administration (osha.gov)
Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings Rulemaking | Occupational Safety and Health Administration (osha.gov)
Comments