Quick Hits
- OSHA has proposed a rule that would transform the Fire Brigades standard into an Emergency Response standard.
- The proposed rule would cover not only firefighting, but also emergency medical services, tactical rescue, and the equivalent services offered in workplaces by employer-provided services.
- Comments are due no later than May 6, 2024.
With the potential exception of the COVID-19 standards OSHA created, no other proposal for a change in OSHA standards in recent memory has been as comprehensive as these changes. Comments on the proposal are due on or before May 6, 2024.
The 250-page NPRM transforms 29 C.F.R. § 1910.156 into an entirely new standard, but it also makes important changes to:
29 C.F.R. § 1910.6 Incorporation by reference
29 C.F.R. § 1910.120 Hazardous waste operations and emergency response and Appendix B
29 C.F.R. § 1910.134 Respiratory protection
29 C.F.R. § 1910.155 Scope, application and definitions applicable to this subpart
29 C.F.R. § 1910.157 Portable fire extinguishers
29 C.F.R. § 1910.158 Standpipe and hose systems
29 C.F.R. § 1910.159 Automatic sprinkler systems
Most of the changes to these standards are modest. The last two, 29 C.F.R. §§ 1910.158 and 1910.159, essentially do nothing more than require that those systems are compatible with what local fire departments use to couple with them.
Overview of Requirements
There is no way this article can cover in detail all of the nuances of the proposed standard, given its length and complexity, but those requirements include:
- Organization of the Workplace Emergency Response Team, Workplace Emergency Response Employer, or Emergency Service Organization;
- Establishing the organization’s emergency response plan;
- Establishing the organization’s emergency service(s) capability(ies);
- Team member and responder participation;
- Creation of a risk management plan;
- Responder medical and physical requirements;
- Minimum training requirement;
- Facility preparedness activities;
- Equipment and personal protective equipment (PPE) requirements;
- Vehicle preparedness and operational requirements;
- Pre-incident planning requirements;
- Incident Management System (IMS) creation;
- Creation of emergency incident protocols;
- Post-incident analysis; and
- Program analysis.
National Fire Protection Association Standards
The proposed Emergency Response standard incorporates by reference twenty-two National Fire Protection Association (NFPA) standards, most of which are focused on firefighting training, personal protective equipment, health and safety requirements, and apparatus. Though the standard relates to other types of emergency response, much of it does so with a strong firefighting influence.
ESOs and WEREs
The new version of 29 C.F.R. § 1910.156 is divided into nineteen sections and categorizes subject employers as either Emergency Service Organizations (ESOs) or Workplace Emergency Response Employers (WEREs), sometimes referred to as Workplace Emergency Response Teams (WERTs). WEREs and WERTs are often found in chemical plants, refineries, large manufacturing facilities, and power generation facilities where the size of the workforce and the hazards associated with an emergency are such that the owners and operators of those facilities find value in having on-site fire departments and/or emergency medical responders. While there is a differentiation between these types of entities, many of the requirements applicable to ESOs are identical to those for WEREs/WERTs.
Vehicle Preparedness and Operation
There are some serious questions about OSHA’s authority with regard to portions of the proposed standard, such as those related to vehicle preparedness and operational requirements. On-road vehicle design has never been subject to OSHA oversight and traditionally has fallen under the U.S. Department of Transportation’s and/or the National Highway Traffic Safety Administration’s purview. Regardless, this standard would require compliance with standards created by OSHA, as well as those established by the NFPA. Similarly, on-road vehicle operation has never been subject to OSHA regulation, but this standard would do so as it relates to emergency response vehicles. Depending on how OSHA applies the standard, it even goes as far as to the personal vehicles operated by volunteer fire fighters or emergency medical responders who use their own vehicles to respond to emergencies.
Volunteer Services
OSHA clearly intends that volunteer fire departments and volunteer emergency medical services be covered by this standard, and the NPRM discusses employment law cases that relate to control and remuneration for services provided. While many of these volunteer services are public or quasi-public entities, in certain parts of the country they are private organizations, and, as a result, these private organizations would likely be subject to coverage under this standard. As state plans would be required to adopt the standard or the equivalent, this would require public and quasi-public entities in those states to comply with the standard.
Emergency Responders’ Physical and Mental Health
Nearly 80 percent of paramedics self-reported being overweight or obese, according to a 2015 study cited by OSHA in the proposed rule, and for many years there have been shortages of emergency medical service employees, yet the proposed standard calls for the creation of minimum medical requirements commensurate with the requirements of the position, ongoing medical evaluations, and fitness programs. There are no exceptions for provider disability or age contained within the standard. Moreover, mental health services would have to be provided (though they can be provided through community-based resources) to providers engaged in “potentially traumatic events.”
Key Takeaways
If the proposed rule is adopted, the impact on subject employers will be massive and compliance difficult. Most of the providers of the sort of services covered by the proposed standard are private employers that augment services provided by public or quasi-public providers. While the proposed standard, if adopted, would require the creation of mutual aid agreements for a number of reasons, the efforts to negotiate those agreements will be influenced considerably by the fact that the public and quasi-public entities are not compelled to do so. Private entities providing services in the same communities may allow competition to serve as barriers to creating such agreements.
Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and will publish updates on the Workplace Safety and Health blog as additional information becomes available. Further information on OSHA’s Emergency Response proposed rule is available via the firm’s recent podcast program.
To learn more about OSHA’s proposed rule to replace its existing Fire Brigades standard, please join us at Ogletree Deakins’ national Workplace Strategies program, which will feature a breakout session entitled “To Inspections and Beyond: The Latest From OSHA (and Cal/OSHA).” This annual seminar, which will be held May 1–4, 2024, at the historic Washington Hilton in Washington, D.C., is the premier event of its kind for sophisticated HR professionals, in-house counsel, and other business professionals.
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