The Heat is On: A First Look at OSHA’s Proposed Heat Standard

On July 2, 2024, OSHA released its long-awaited national heat illness and injury prevention standard, as predicated in an earlier blog article. It applies to all employers conducting outdoor and indoor work in all general industry, construction, maritime, and agricultural industries with limited exceptions.

The proposed rule would require all covered employers to develop a heat injury and illness prevention plan (HIIPP) in collaboration with non-supervisory employees that contains site-specific information to abate identified heat hazards. For employers with more than ten employees, the HIIPP must be in writing and made available to employees onsite in a language that each employee, supervisor, and heat safety coordinator understands. Employers will need to review the plan whenever a recordable heat-related illness or injury occurs and at least annually.

The fundamental components of the proposed rule, identifying rest, water, shade, and acclimatization, are unsurprising as they are abatement strategies historically recommended by OSHA. However, the proposed standard includes an initial heat trigger (without regard to location) with a heat index of 80 degrees Fahrenheit, at which employers must provide suitably cool drinking water, offer break areas with cooling measures, and use an acclimatization protocol for new or returning employees. The high heat trigger of 90 degrees requires additional protections, including providing employees with a minimum 15-minute paid rest break at least every two hours and a hazard alert reminding employees to drink water and take breaks, among other things.

The proposed standard also requires significant recordkeeping and other administrative obligations, which employers may find onerous. These include requiring employers to (1) conduct regular heat risk assessments to evaluate the potential for heat exposure in different job roles and settings; (2) implement systems to monitor workplace temperature and humidity levels; (3) maintain records of monitoring heat data for at least six months; (4) maintain records of heat-related incidents; (5) conduct audits of heat safety measures to identify areas for improvement; and (6) provide employee training on heat-stress hazards.

OSHA will accept comments on its proposal for 120 days following publication in the Federal Register. All stakeholders should take an opportunity to review the proposed rule and submit appropriate comments. Notwithstanding the public comment period, there is no doubt that the proposed rule will face legal challenges, particularly in light of the recent SCOTUS case eliminating Chevron deference to federal agencies. In addition, if the proposed rule is not finalized by November (and perhaps even if it is) and there is a change in leadership at the White House, it is just as likely that the proposed rule may be short-lived, at least in its current form. In the interim, OSHA may continue to cite an employer for heat hazards under the general duty clause.

Now that we have seen the proposed rule, industry groups will inevitably continue arguing that such onerous and rigid requirements are simply unnecessary. For example, the Bureau of Labor Statistics found during a representative period that, on average, there were 63 occupational fatalities per year due to animal attacks, while OSHA has stated there were, on average, approximately 40 fatalities per year due to environmental heat. However, OSHA maintains that the number is underreported. Other continued criticisms will likely include failing to recognize regional differences when working at 80 degrees or higher across the country.

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