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Where Things Stand with OSHA’s Planned Hazardous Heat Regulations
Several years ago, OSHA announced an intention to pass workplace safety regulations addressing indoor and outdoor hazardous heat. While OSHA has not finalized those regulations yet, it is getting closer, checking the boxes necessary to get a final regulation on the books. And as that process has played out over the last few years, OSHA has signaled what a hazardous heat regulation is likely to include.
On October 27, 2021, OSHA published an Advanced Notice of Proposed Rulemaking (ANPRM) in which OSHA expressed an interest in regulating hazardous heat. In the ANPRM, OSHA explained that it has historically tried to address hazardous heat in different ways, but nothing has been effective. A new regulation, on the other hand, would establish clear and enforceable rules for employers to follow. OSHA described several “strategies” for employers to reduce the risk of hazardous heat, including maintaining a written heat safety program, periodically monitoring temperature, creating emergency heat-related procedures, ensuring the availability of water and shade, and training employees on the dangers of heat. Some of these strategies are likely to turn into enforceable rules in a final regulation.
OSHA has also recognized that the regulatory process might take years to complete, and it has acted to address the issue of hazardous heat in the meantime. On April 8, 2022, OSHA announced a National Emphasis Program (NEP) on Outdoor and Indoor Heat-Related Hazards. The NEP essentially forced an increase in the number of heat-related inspections nationwide. Specifically, OSHA inspectors must conduct heat-related inspections in certain industries on days when the National Weather Service issues hazard alerts due to high temperatures. And on so-called “heat priority days” when the heat index is over 80 degrees, inspectors must ask about employers’ heat safety protocols (even when the inspections are not focused on heat). In the last two years, OSHA has conducted over 5,000 heat-related inspections.
Recent developments have shed more light on what a final heat regulation may require of employers. A federal law called the Small Business Regulatory Enforcement Fairness Act requires that OSHA obtain feedback from representatives of the small business community when OSHA is considering significant new regulations. In August and September 2023, OSHA convened panels of these representatives to discuss hazardous heat. To ensure this process was useful, OSHA provided these panels with a “Regulatory Framework,” which is a general outline for a future hazardous heat regulation. In it OSHA explained that it anticipates a “programmatic standard” for heat, meaning employers might be able to create programs tailored to their unique workplaces. OSHA reiterated a number of the key components of a regulation that were discussed in the ANPRM. Employers will likely be required to have a written heat safety program, monitor weather conditions, and conduct worker training, among other things.
OSHA also suggested in the Regulatory Framework that certain “heat triggers” could require additional worker protections. A few potential triggers are listed. For example, a heat index of 80 degrees could be an “Initial Heat Trigger,” and a heat index of 87 degrees could be a “High-Heat Trigger” requiring further protections. Alternative triggers could be based on ambient temperature, or a Wet Bulb Globe Temperature (WBGT) based on recommendations from the National Institute for Occupational Safety and Health (NIOSH).
In April of this year, OSHA completed another step in the regulatory process: obtaining approval from the Advisory Committee in Construction Safety and Health (ACCSH). OSHA gave a presentation to the ACCSH in which it gave more details on the possible contents of a future regulation. For example, OSHA further refined the heat-trigger concept. It again suggested an “Initial Heat Trigger” could be a heat index of 80 degrees or a NIOSH-recommended WBGT. At that initial trigger, employers might be required to supply drinking water, offer rest breaks, and have an acclimatization plan in which new workers would gradually be exposed to high heat over a number of days. OSHA also suggested a “High Heat Trigger” could be a heat index of 90 degrees (three degrees higher than the trigger in the Regulatory Framework), or an equivalent NIOSH-recommended WBGT. At the high trigger, employers could be required to guarantee rest breaks of 15 minutes every two hours.
The latest development from OSHA on hazardous heat is a press release dated May 8, 2024, in which OSHA highlighted its approval from the ACCSH. In the press release OSHA recommended that employers provide workers with cool water, rest breaks, and shade, and that new workers be acclimatized to hot working conditions. OSHA also stated that it is “prioritizing programmed inspections in agricultural industries that employ temporary, nonimmigrant H-2A workers for seasonal labor.” These workers, OSHA explained, “face unique vulnerabilities, including potential language barriers, less control over their living and working conditions, and possible lack of acclimatization, and are at high risk of hazardous heat exposure.”
The next formal step for OSHA is to publish a Notice of Proposed Rulemaking (NPRM), which will include a draft of the regulation. It is unclear when we can expect an NPRM, but OSHA has suggested that publication before the end of 2024 is unlikely. The last step in the regulatory process is the publication of a Final Rule, which effectively finalizes a regulation. A Final Rule may be several years away. Nonetheless employers should continue to monitor this important issue, as every update from OSHA is another signal of what a final hazardous heat regulation could include.
