Workplace safety experts say the Occupational Safety and Health Administration’s proposed standard to manage indoor and outdoor heat dangers is broad and unclear — applying to virtually every industry — and is likely to hit a few road bumps as a result.
The agency on July 2 announced plans to issue a Notice of Proposed Rulemaking for a Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings standard, a document that as of Tuesday — two weeks post-announcement — had yet to find its way into the Federal Register, a step that would launch a 120-day public comment period. That period now is likely to end after the presidential election, according to experts.
OSHA said the standard would require employers to create a plan to evaluate and control heat hazards that is site-specific and would “clarify employer obligations and the steps necessary to effectively protect employees from hazardous heat.”
Much of the proposed rule addresses requirements on training, heat monitoring, protective gear, work breaks and rest areas, air conditioning, acclimatization for workers, and recordkeeping when injuries or fatalities occur.
Pam Walaski, Templeton, Pennsylvania-based president of the American Society of Safety Professionals, said the proposal is “pretty standard” and what employers should have expected OSHA to create for them to manage heat-associated risks for workers. She said her organization is “still digging through” the document and that objections are expected.
The proposal is a long-awaited move in the agency’s efforts to keep workers safe in soaring temperatures. The draft of the document was hailed by worker advocacy groups that say federal OSHA has lagged behind states such as Arizona and California in creating guidelines for employers whose workers face such risks as heat stroke. The National Council for Occupational Safety and Health issued a statement on July 2 calling OSHA’s announcement “a critical step in protecting millions of workers from heat-related illnesses and injuries.”
According to a draft of the standard, the regulations would apply to all employers conducting outdoor and indoor work in all industries. Several legal experts said such a scope is likely to cause ripples among business groups, especially in light of recent U.S. Supreme Court rulings that could limit the federal government’s ability to set regulations.
Andrew C. Brought, a Kansas City, Missouri-based partner with Spencer Fane LLP, said the proposal states that employers must engage in heat safety protocols — including training and recordkeeping — when temperatures reach a certain level.
“The way that they’ve set up this rule, I think the only way it will survive a legal challenge is that they will have to narrow it and only have the rule apply to very specific industries at very specific times,” Mr. Brought said.
Eric Conn, Washington-based founding partner of Conn Maciel Carey LLP, said the proposal is unclear when it comes to the required timing and frequency of rest requirements.
Paperwork is another concern, said Mr. Conn, whose firm has worked with OSHA on creating the standard. He said the agency incorporated some recordkeeping provisions “that we’ve been pushing against since they started this rulemaking.”
For example, the proposal would require employers to document on-site temperature to evaluate whether certain provisions are triggered. “It’s just creating a paperwork burden that seems unnecessary here,” he said.
The proposal also calls for employers that experience a heat-related health incident on site to reexamine their plans and document the process, he said.
“You’ll be required to evaluate the effectiveness of your heat illness prevention plan annually, and if you have incidents, such as someone complaining of symptoms, even mild heat symptoms, you’re required to do another review of the effectiveness of your plan more frequently than annually,” Mr. Conn said, noting that such a review would include input from both supervisors and frontline workers. “That’s an onerous provision.”
