The Occupational Safety and Health Administration has recently issued a Notice of Proposed Rulemaking, addressing “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.” This proposed standard would apply to all employers in the general industry and construction sectors, with a few limited exceptions, such as firefighting and emergency medical services. The proposed standard attempts to codify what the Agency has been enforcing for years under the OSH Act’s General Duty Clause, which the Agency will continue to use until there is a Heat Standard in effect.

The trigger point for the proposed standard is any work activity for which employee exposure is at or above a heat index of 80o F. The heat index refers to the National Weather Service heat index, which combines the ambient temperature and humidity. The proposed standard would not apply, however, in the case of short exposures of 15 minutes or less in any 60-minute period, or if the employee is performing only sedentary tasks indoors.

Consistent with OSHA’s existing National Emphasis Program on “Outdoor and Indoor Heat-Related Hazards” and its various guidance documents on the OSHA website, the proposed standard would generally require employers to provide the following:

  1. Access to drinking water (access to 1 quart per employee per hour),
  2. Paid breaks in either shade or air-conditioned areas for outdoor work, or air-conditioned or ventilated areas for indoor work,
  3. Training for employees, among other topics, about the signs and symptoms of heat-related illness and the steps to take to prevent such illness, and training for supervisors on the signs and symptoms to look out for, as well as the steps to take if they observe such signs and symptoms, and
  4. Acclimatization for new employees, and for existing employees who have been away from work for more than 14 days. Under these provisions, employers would have to ramp up employees’ tolerance to heat by limiting their exposure to less than a full shift for the first few days of an employee’s employment or return to work. Acclimatization appears to be the most controversial part of the proposed standard, especially for employers who routinely use staffing agency workers to fill in for brief employee absences, vacations, or leaves.

The proposed standard also addresses what it refers to as a “High Heat Trigger,” which is reached at or above a heat index of 90o F. In addition to the four steps identified above, under the “High Heat Trigger,” 15-minute paid breaks would have to be given at least every two hours, there would be a mandatory buddy system for co-workers to observe each other for signs and symptoms of heat-related illness, and a supervisor or heat safety coordinator would be allowed to monitor no more than 20 covered employees for signs and symptoms. And before any “high heat trigger” work shift, employers would have to remind employees to stay hydrated, take rest breaks, and report any signs or symptoms they are experiencing.

The proposed standard would also require covered employers to have a written Heat Injury and Illness Prevention Plan, and to designate one or more Heat Safety Coordinators to be responsible for implementing the Plan.

Once the proposed standard is published in the Federal Register, OSHA will accept comments from the public for 120 days. OSHA will consider all of the comments before it issues a Final Standard, maybe before the end of this year.

The timing of the new standard may be affected by the Congressional Review Act, which gives Congress the ability to rescind any regulation by passing by a simple majority a joint resolution of disapproval. Congress has 60 legislative days to pass such a joint resolution. The President would then have the choice of vetoing the joint resolution or letting the joint resolution stand. The Congressional Review Act was used in 2001 to overturn OSHA’s Ergonomics Standard, which was issued at the end of the second Clinton Administration.

Please let us know if you have any questions about the proposed heat standard or need any help drafting a written Heat Stress Prevention Program.

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