OSHA Publishes Its Advance Notice of Proposed Rulemaking for Heat Stress

On October 27, 2021, OSHA published an Advance Notice of Proposed Rulemaking (“ANPRM”) to initiate a comment period to gather diverse perspectives and expertise on heat stress issues such as heat stress thresholds, heat acclimatization planning, and exposure monitoring. OSHA has been talking about a need for a heat stress standard, so this development is not surprising. Although OSHA has traditionally addressed heat hazards under the general duty clause, a decision by the Occupational Safety and Health Review Commission on February 28, 2019, in Secretary of Labor v. A.H. Sturgill Roofing, Inc[1]., which reversed an administrative law judge’s order affirming heat-related citations made it more difficult for OSHA to do so.  In fact, the Commission in Sturgill specifically questioned the use of the general duty clause calling it more of a “gotcha” and “catch-all” law and opined that once a hazard is identified, such as heat stress, OSHA should engage in rulemaking to allow various stakeholder participation in the process. It seems OSHA has finally taken the Commission up on that offer. 

In addition, shortly before the issuance of the ANPRM, OSHA issued enforcement guidance dated September 1, 2021, addressing heat stress investigations. It is clear from the enforcement guidance that OSHA is focused on heat stress as a priority for a number of factors, including the underreporting of heat illnesses, that it believes most heat illness cases can be avoided, the growing frequency and intensity of extreme heat events due to climate change and the disproportionate number of minority employees who work under such conditions.

OSHA further identified certain industries such as construction, manufacturing, agriculture, transportation, and warehousing as having the highest heat-related average fatalities per year.  These businesses, in particular, should seriously consider participating in the rulemaking process to ensure their concerns and input will be considered by OSHA. If and when OSHA eventually issues a heat stress standard, which looks to be just a matter of time, such a standard could have a significant impact on how these businesses operate. 

[1] James Sullivan, co-author of this blog was one of the Commissioners on the Occupational Safety and Health Review Commission when Sturgill was decided. 

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