What employers need to know about OSHA's proposed heat standard

On July 2, federal OSHA released a proposed heat standard that has not yet been published in the Federal Register. In the Spring 2024 Regulatory Agenda, the date for the Notice of Proposed Rule Making (NPRM) is listed as 8/00/2024. The proposal will apply to employers conducting outdoor and indoor work in all industries, with particular attention to the construction, maritime, and agriculture sectors. Key elements include:

• Employers with ten or more employees will be required to develop a written Heat Illness Prevention Plan (HIPP) that must be customized to the workplace and include site-specific measures as well as address the requirements in the standard.
• Training of supervisors and workers to recognize the signs of heat-related illnesses, how to protect themselves, and what actions to take in the event of an emergency.
• The initial heat trigger is 80 degrees Fahrenheit or when the Wet Bulb Globe Temperature (WBGT) meets the NIOSH recommended alert limit. Employers would be required to provide workers with water sufficient for one quart of drinking water per employee per hour, have shaded or air-conditioned areas for breaks, frequently monitor the temperature, and establish effective two-way communication with remote employees.
• Under the high heat trigger, which is when temperatures reach 90°F or WBGT reaches the recommended exposure limit, paid 15-minute breaks every two hours would be mandatory, buddy systems or supervision monitoring are required to ensure early detection of heat-related symptoms, and employees must be given heat hazard alerts about the importance of staying hydrated, taking breaks, how to seek emergency help, and the location of water and break areas.
• Employers must have acclimatization plans for new or returning workers and two options are included in the standard. The well-known NIOSH plan of working 20 percent of their shift in the heat on day one, 40 percent on day two, etc., or apply the provisions applicable to the high-heat trigger to new or returning employees even when the temperature is below 90°F.
• Employers must have procedures to ensure immediate aid if a worker shows signs of heat illness. As drafted the standard places significant responsibility on frontline supervisors and field employees to identify, monitor, and address symptoms.
• Recordkeeping of heat monitoring and heat-related incidents, including illnesses and near-misses.
• Review and evaluate the HIPP's effectiveness whenever a heat-related illness or injury occurs that results in death, days away from work, medical treatment beyond first aid, or loss of consciousness, at least annually, and make needed updates.

For a Fact Sheet summary

What happens next

Once the proposed rule is published in the Federal Register, there will be a 120-day public comment period and a public hearing is anticipated. Then OSHA will review the comments and may adjust the proposed rule before publishing a final rule. Therefore, it's likely the earliest the rule would take effect is summer 2025.

Possible obstacles

The path forward for the standard faces two potential obstacles.

1. The comment period will end after the presidential election and a change to a Republican administration could derail the rule.
2. Regardless of which party controls OSHA in 2025, legal challenges are possible. The scope of the standard is broad - applying to all industries and including outdoor and indoor work. The recordkeeping provisions are burdensome. The provision requiring review and evaluation of plans when an incident occurs is considered onerous as many personal factors may affect the ability of a person to work in the heat, such as obesity, medical conditions, physical fitness, and an episode may not indicate a plan deficiency.

Given the Supreme Court's recent Loper decision overturning the Chevron Deference, several legal experts see the broad scope as fodder for legal challenges to the rule or citations issued in connection with the rule. Business groups or employers may argue that the agency has overstepped its statutory authority or that the rule lacks specificity, clarity, or does not consider risk differences in industries and geographic areas.

These issues will be raised in the comment period, but it's unknown if OSHA will make significant changes to mitigate the possibility of legal challenges.

What should employers do now?

Regardless of what happens with this proposed rule, OSHA will continue to aggressively use its tools to target workplaces where heat-related injuries or illnesses are prevalent. It uses the General Duty Clause to issue citations alleging employers are not taking adequate steps to protect employees from heat hazards. Further, the agency has already conducted about 5,000 federal heat-related inspections using its National Emphasis Program (NEP) related to heat illnesses and injuries for both outdoor and indoor workers, which is effective until April 2025. Inspections conducted under NEPs are programmed inspections, which means that OSHA can visit even if nothing bad has happened and OSHA finds violations in 70+ percent of inspections. Even if there is a change in party control, change within the day-to-day operations of the agency comes very slowly.

Moreover, several studies have documented that work-related incidents increase by as much as 10 percent on very hot days. Incidents can be caused directly by heat, including heat cramps, heat exhaustion, and heat stroke. Extreme heat can also impair cognitive or motor function, which indirectly leads to accidents such as falling off ladders or improper operation of machinery.

More employers are recognizing the dangers to their workers and are leveraging technology to protect their workers from heat-related hazards, including wearable devices that monitor vital signs and warn of overheating according to the Associated Press.

To minimize enforcement risks and protect employees, employers should review the proposed standard and consider the options to address heat hazards in the workplace:

• If you don't have a written plan, conduct a hazard analysis of job duties or positions that could involve exposure to extreme heat, including outdoor and indoor workspaces, and develop a plan consistent with the requirements in the proposed standard. Employers with existing plans should evaluate whether the elements OSHA proposes are included.
• If you are in a state OSHA plan location, know and comply with the state plan requirements.
• Educate employees on the use of vital apps, such as the OSHA-NIOSH Heat Safety Tool.
• Assess the use of wearable devices and other technologies to mitigate heat risks in your workplace.
• In training, emphasize hydration. Most workers drink less water than needed because they rely on thirst only. The CDC recommends drinking one cup (8 ounces) of water every 15-20 minutes when working in the heat and hydrating after work. Drinking at short intervals is more effective than large quantities less frequently. Make sure workers understand the early signs of heat-related illness and set clear action plans for how to report symptoms.
• Don't underestimate the importance of acclimation. Over 70 percent of heat-related deaths occur during a worker's first week. OSHA provides a list of recommendations on properly acclimating workers.