Employment & Labor Insider

The Occupational Safety and Health Administration has begun a new, revised National Emphasis Program, focused on protecting employees from heat-related hazards in indoor and outdoor workplaces in general industry and construction settings. This new NEP replaces the Biden-era NEP that had been in effect since 2022, but the same requirements for employers will still be in effect:

• Training to inform employees about, among other topics, recognizing the signs and symptoms of heat-related illness and how certain medications and pre-existing medical conditions may increase the risk of heat stress.
• Appropriate PPE, such as wearing hats for work in the sun, loose-fitting reflective clothing if working near radiant heat indoors, or cooling vests or bandanas.
• Engineering controls, such as air conditioning, cooling fans, and shade for outdoor work.
• Administrative controls, such as scheduling hot jobs during cooler parts of the workday, providing cool drinking water and frequent rest and water breaks, and allowing new workers and workers returning from extended absences to get acclimated to hot working environments.

OSHA refers to the above steps as voluntary measures. However, in the past, the failure to adequately address heat-related hazards has resulted in the issuance of citations under the General Duty Clause of the Occupational Safety and Health Act.

The NEP also provides that heat-related inspections will be conducted both as programmed inspections (for Targeted Industries, which are listed in Appendix A of the NEP and include bakeries, sawmills, foundries, warehousing, and waste collection) and unprogrammed inspections (based on employee complaints and referrals from other agencies or entities). 

The NEP instructs OSHA Compliance Officers to address heat-related hazards “impromptu” during inspections for other purposes if 1) heat-related illnesses are recorded on the OSHA 300 Log, 2) employees complain about the heat (when would that ever happen?), or 3) heat is, in OSHA’s words, in “plain view.”

Programmed inspections will occur on any day the National Weather Service announces “a heat warning or advisory for the local area,” which is addressed in Appendix D of the NEP.  As a practical matter, that could be any day that the Heat Index (a measurement of the combined effect of temperature and humidity) reaches at least 80º F.

During any heat-related OSHA inspection, the Compliance Officer will be looking to see whether the employer is in good faith providing adequate training and access to water, rest, and shade. Like it or not, the Compliance Officer may also address an employer’s efforts to allow employees to “acclimatize” – in other words, by gradually increasing the workload if the employee is newly hired or has been away from work for an extended period of time. Unfortunately, there is no exact formula for what will be deemed to be compliant, so your best bet is to have a written policy or program that addresses these hazard prevention measures and to be viewed by OSHA as applying the policy or program in good faith.

States with their own OSHA Programs are encouraged in the NEP to implement comparable enforcement plans or policies.

If you have questions about these or any other OSHA compliance issues, please contact any member of Constangy’s Workplace Safety & OSHA Practice Group.