OSHA’s Proposed Emergency Response Standard: A Closer Look and an Analysis for Covered Employers

Quick Hits

• OSHA’s proposed Emergency Response Standard—an overhaul of the decades-old Fire Brigades Standard—would apply to firefighting, emergency medical services, and technical search and rescue.
• The proposed standard’s lack of specific definitions, action levels, and exposure limits makes its compliance expectations less than clear for covered employers.
• The proposed standard’s framework may impose additional compliance, implementation, and operational challenges on ESOs and WEREs/WERTs while impacting their ability to recruit and retain personnel for key roles.
• Comments on the proposed standard must be submitted by May 6, 2024.

The proposed Emergency Response Standard—a revamp of the Fire Brigades Standard, 29 C.F.R. § 1910.156, promulgated in 1980—applies to emergency responders in three areas: firefighting, emergency medical services (EMS), and technical search and rescue. A small portion of the standard also applies to “skilled support workers” (SSWs), a term that includes operators of heavy duty wreckers, earthmoving services, crane and lifting services, and similar occupations working in conjunction with emergency responders. While the proposed standard breaks down the requirements applicable to ESOs and WEREs/WERTs in somewhat different terms, the obligations are relatively similar, with the challenges of the newly proposed standard closely aligning.

OSHA’s proposed standard has a number of issues, including a lack of careful editing of the document (section and subsection numbers being the single biggest issue) and incorporation by reference of industry standards that either no longer exist or are being replaced by new standards. But beyond “quick-fix” editorial issues, the proposed standard could create a number of issues for covered employers, such as:

• a lack of clarity concerning expectations, due to poorly defined terms that are subject to varying interpretation;
• the application of the Incident Command System (ICS) across emergency response functions, regardless of whether it is truly applicable to the type of response;
• other federal agencies’ regulation of the same conditions targeted by the proposed standard;
• OSHA’s apparent lack of understanding as to how ESOs are structured, work, and interface with their competitors and public-sector counterparts; and
• heightened physical and educational requirements that will compound the recruitment and retention difficulties already faced by many ESOs.

Ambiguous Definitions

One of the biggest issues associated with the proposed standard is the absence of specific definitions, action levels, and exposure limits, which makes the compliance expectations unclear. For instance, the standard uses a number of terms that, while commonly used, have no corresponding definition within the standard (nor reference to other standards for definition) to guide covered employers. These terms include “contaminants from fire,” “toxic chemicals,” “known or suspected toxic products,” and “dangerous substances.” While there are express expectations regarding an employer’s conduct related to these terms, the absence of a definition or other quantitative action level leaves employers guessing as to what OSHA expects of them.

Other definitions result in similar questions about the intent of the standard. For instance, the proposed standard includes a disjointed and confusing representation as to covered job duties:

Employers that are emergency service organizations as defined in paragraph (b) of this section, that provide one or more of the following emergency response services as a primary function; or the employees perform the emergency service(s) as a primary duty for the employer: firefighting, emergency medical service, and technical search and rescue. For the purposes of this section, this type of employer is called an Emergency Service Organization (ESO), and the employees are called responders.

It then offers these defined terms:

Emergency Service Organization (ESO) means an organization that provides one or more of the following emergency response services as a primary function: firefighting, emergency medical service, and technical search and rescue; or the employees perform the emergency service(s) as a primary duty for the employer.

Personnel (called responders in this section), as part of their regularly assigned duties, respond to emergency incidents to provide service such as firefighting, emergency medical service, and technical search and rescue. It does not include organizations solely engaged in law enforcement, crime prevention, facility security, or similar activities.

The combination of the proposed standard’s statement of coverage and these two definitions raises questions about the application of the standard in a variety of scenarios. For instance, if the responders are doing administrative work and not responding to an emergency, are they still covered? If the ESO provides both emergency and nonemergency responses, are both functions covered? Are ESO dispatchers, trainers, and others who never engage in front-line emergency responses as part of their day-to-day work considered responders because they “respond” to emergency incidents?

Unfortunately, the proposed standard fails to recognize that a large portion of the work performed by responders is not any sort of emergency response, but instead normal day-to-day activities, including various administrative duties, cooking, cleaning, and similar “housekeeping” duties, as well as transporting patients on a nonemergency basis from one facility to another.

Application of ICS

The concept of ICS was developed more than fifty years ago, after a California wildfire left sixteen people dead, 700 structures destroyed, and more than a half million acres burned. The loss from that fire was calculated at more than $18 million per day (in 1970s dollars) and highlighted numerous problems with communication and coordination efforts between the many responding agencies.

Starting as a California-only concept, the first version of ICS was referred to as FIRESCOPE (Firefighting Resources of Southern California Organized for Potential Emergencies) and applied solely to wildland fires. By the mid-seventies, the initial FIRESCOPE participants had formally agreed upon on ICS’s common terminology and procedures and conducted limited field-testing of ICS. In 1982, all FIRESCOPE ICS documentation was revised and adopted as the National Interagency Incident Management System (NIIMS). That document would later serve as the basis for the National Incident Management System (NIMS) ICS.

Though OSHA’s proposed standard heavily references ICS and requires all ESOs/WEREs/WERTs to adopt ICS, it fails to reference NIMS. While ICS has been used for decades in firefighting, its primary use in the other covered types of emergency response is in conjunction with responses to major events where responders from multiple organizations deploy personnel. ICS is not commonly used in EMS, save for and except to the extent used in coordinated responses like the Federal Emergency Management Agency (FEMA) National EMS response. Even when used under the FEMA National EMS response, the application of ICS is a coordination process and not a unit-by-unit response.

The vast majority of EMS providers work alone and/or in conjunction with a small group of responding units where the high degree of coordination and control of ICS is not necessary, and, therefore, not used. The proposed standard, however, appears to require the use of ICS to events as modest as a single ambulance being called to assist someone having an allergic reaction to a beesting or the transport of a patient from a lower to higher acuity care facility via aircraft. For the single unit response, one of the crew becomes the incident commander, bears incident commander responsibilities, and assumes a significant planning, debriefing, and documentation burden.

Unfortunately, the cumbersome nature of the proposed standard’s reliance on ICS not only fails to recognize the limited utility of incident command systems in small responses, it also fails to recognize decades of safe and healthful EMS practice without ICS. Ambulance staff is often an emergency medical technician (EMT) and someone with a higher level of licensure, such as a paramedic or equivalent (depending on the state licensure nomenclature). The person with the more advanced license is the person responsible for leading the crew and serves as the supervisor. That supervising crewmember is also typically the person providing the patient medical care while the other is driving. Thus, in addition to being the caregiver, the supervising crewmember will also be responsible for being incident commander and bear the corresponding documentation responsibilities.

While it can be argued that requiring ICS only formalizes the traditional roles of EMS, the requirement that the supervising person function as the incident commander can be expected to serve as a distraction from providing patient care. In addition, the added layers of planning, debriefing, and documentation can be expected to cause redeployment of the crew to be delayed. In larger communities that have plenty of resources, this may not be an issue, but in smaller or rural communities where times to complete calls tend to be long, any added delay is potentially troublesome.

In the past, OSHA has relied on an employer’s implementation of ICS as the basis for claims related to joint and co-employment, alleging that the level of control the incident commander has in ICS establishes liability under OSHA’s multi-employer citation policy (MECP) (i.e., as a controlling employer directing the work of others). Thus, the incident commander employer has greater exposure to OSHA liability than it would otherwise have when ICS is not implemented, because the incident commander is deemed to have taken responsibility for the health and safety of all responders, not just those employed by his or her organization.

Additionally, other ESOs/WEREs/WERTs could be cited if their conduct in an emergency response created or failed to correct a hazard, or exposed their personnel to a hazard, even though they are not in charge of the emergency responders under the ICS model.

Federal Preemption

Several aspects of the proposed standard seemingly reflect a failure to recognize that other federal agencies already regulate the working conditions and preempt OSHA’s jurisdiction. The ICS requirement in certain types of responses is problematic in this regard. For example, flight services offered by ESOs would be subject to OSHA jurisdiction at certain stages of an emergency response, but if an aircraft were in motion, those requirements would no longer apply because the health and safety of the pilot and crew fall under the jurisdiction of the Federal Aviation Administration. Applying ICS to part of a response, but not all of it, may create confusion and compliance challenges.

Additionally, the proposed standard establishes requirements relative to various vehicle components and the operation of vehicles, both areas that are within the jurisdiction of the U.S. Department of Transportation (DOT) and not OSHA. The proposed standard also seems to establish certain requirements relative to traffic control outside of highway construction zones—arguably, a DOT function and not an OSHA function. Whether OSHA intends to enter into memoranda of understanding with the other federal agencies implicated by the proposed standard is unknown, but some of what OSHA appears to wish to accomplish is clearly preempted.

Relationships Between Competing Entities

Given the prevalence of governmental entities providing firefighting, emergency medical services, and tactical search and rescue services, private providers will be subject to direction and oversight of (or provide direction and oversight to) responders who are employed by organizations not subject to the standard’s requirements. Therefore, it is quite conceivable that a public fire department could direct personnel and resources to act in a manner inconsistent with the requirements of this or another OSHA standard, because in federal OSHA states public-sector ESOs are not required to comply with OSHA standards. Moreover, these public-sector ESOs—not subject to the standard’s requirements—might not comply with every detail of the standard, and, as a consequence, put the private-sector ESOs/WEREs/WERTs in jeopardy of OSHA citation due to that noncompliance.

The proposed standard would also compel providers to enter into mutual-aid agreements when an ESO/WERE/WERT did not have all of the capabilities required to respond to an emergency that the ESO/WERE/WERT reasonably anticipated it would need to respond to. The requirement would apply to all organizations regulated by the standard. Even though many of the impacted organizations are actively in competition with each other, the proposed standard would require execution of mutual-aid agreements. In many communities, where the firefighting is a governmental function, private providers would be compelled to enter into mutual-aid agreements with those governmental organizations, regardless of whether the public entity was covered by OSHA. This does not address the fact that the public entity might also be in competition with the private-sector entity and have little to no incentive to work with the private-sector entity on a mutual-aid agreement.

Recruitment and Retention of Personnel

While the logistical burdens associated with the proposed standard are significant, its requirements also potentially impact the ability to recruit and retain personnel in roles that are already difficult to fill by applying standards that weren’t intended to apply to certain types of responders. The National Fire Protection Association (NFPA) has stated that there is no “physical” standard for EMS responders, but the proposed standard nevertheless seeks to apply criteria similar to that applicable to firefighters by including a variety of requirements related to the physical and medical status of responders.

Though professional firefighters are typically subject to rigorous physical fitness testing prior to hire, many other responders only have to pass a basic medical evaluation or examination and physical aptitude test. This includes volunteer firefighters, EMS responders, and some search and rescue roles.

The increased physical and medical requirements mandated by the proposed rule for recruits would disqualify a significant portion of those interested in such positions. Moreover, given the ongoing medical and physical fitness requirements under the proposed standard, many current responders would be disqualified despite the fact they are licensed, skilled, and experienced.

Beyond the initial requirements relative to hiring employees for these roles, the medical/health of emergency response employees would need to be subject to employer surveillance and monitoring. The cardiac and pulmonary/respiratory health of providers is the focus of these efforts, with heavy emphasis on exposures to toxic, hazardous, and carcinogenic substances, though the proposed standard does not define those terms. Consistent with a focus on these systems and substances, the standard also focuses heavily on the inhalation of the byproducts of combustion.

Under the proposed standard, the ESO/WERE/WERT would also have to develop fitness programs and make fitness resources available to employees during working hours. This would compel ESOs/WEREs/WERTs to allow employees to participate in physical fitness programs while working. For a number of ESOs/WEREs/WERTs, it is unclear how those obligations would or could be met—and for a large organization that has many people in the role of emergency responder, this may not be practical.

The preamble to the proposed standard suggests that volunteer firefighters receiving a very modest amount of remuneration for their services would cause their ESOs to be subject to the proposed standard. As those firefighters do not have “working hours,” it is unclear how an ESO would comply. In smaller and rural communities where the 911 service may be staffed by an ambulance or two in remote outposts, taking those crews out of service for an hour of exercise while they are working will almost certainly result in gaps in coverage for those communities.

Beyond the physical/medical qualifications, medical evaluation and surveillance, and fitness requirements, the new standard would also establish requirements related to employees’ mental health. In an unprecedented OSHA requirement, the proposed standard would require employers to establish mental health programs that both “monitor” the mental health of their employees and provide their employees with access to mental health resources. How an employer of these responders would monitor the mental health of its employees is unclear, but the implication is potentially intrusive and riddled with employment law implications (in particular, the Americans with Disabilities Act’s (ADA) prohibition on disability-related inquiries).

At no cost to the employee, the ESO/WERE/WERT would be required to provide behavioral health and wellness resources or identify where such resources were available at no cost in the community. OSHA has proposed that such resources include, at a minimum, “(A) Diagnostic assessment; (B) Short-term counseling; (C) Crisis intervention; and (D) Referral services for behavioral health and personal problems that could affect the team member or responder’s performance of emergency response duties.” (Emphasis added.) The ESO/WERE/WERT would have to periodically remind providers of the availability of these resources, particularly after traumatic or potentially traumatic responses.

Risk Management Plans

The ESO/WERE/WERT would have to create a risk management plan. While many organizations have risk management plans, the level of detail required under the proposed standard would far exceed what most organizations include in their plans. The proposed standard would require a plan to present the risks to employees associated with activities at WERE and ESO facilities; training; vehicle operations; operations at emergency incidents; nonemergency services and activities; and activities that lead to exposure to combustion products, carcinogens, and other incident-related health hazards.

The risk management plan would also have to identify actual and reasonably anticipated hazards; evaluate the likelihood of an occurrence of a given hazard and the severity of its potential consequences; establish priorities for action based upon a particular hazard’s severity and likelihood of occurrence; present risk control techniques for eliminating or mitigating potential hazards, as well as a plan for implementing the most effective solutions; and include a plan for a post-incident evaluation of the effectiveness of the risk control techniques. It also would have to include a policy for extraordinary situations, where after reviewing and making a risk assessment determination, a responder with insufficient training would be permitted to attempt to rescue a person in imminent peril. The risk management plan would have to be reviewed annually.

While most emergency response organizations have standard operating procedures and procedures for handling most scenarios, the proposed standard goes much further and far exceeds what is standard for the industry. The planning would require the ESO/WERE/WERT to determine locations and facilities where responders could be called to provide service that need a pre-incident plan (PIP), based on a community or facility vulnerability assessment and the type(s) and level(s) of service(s) established that are expected to be required. Additionally, to the extent the service area includes “Superfund sites” employers would be required to have a PIP that includes plans relative to those locations. Pre-incident planning, relative to facilities, would require the ESO/WERE/WERT to know the facility’s use, contents, processes, hazards, and occupants and familiarize the facility’s occupants with the pre- and post-incident planning. Additionally, there are proposed requirements relative to post-incident planning and review.

Documentation of Compliance

Of course, consistent with any OSHA standard, the proposed standard would require employers to generate documentation demonstrating compliance. Given the number of issues that the proposed standard would require the ESO/WERE/WERT to address, the potential volume of that documentation is incredible. When consideration is given to the fact that many of the records at issue are medical or exposure records that must be maintained for the duration of employment plus thirty years, the proposed standard would impose a burden that could overwhelm many smaller and less sophisticated ESOs/WEREs/WERTs.

Looking Ahead

The revision of the Fire Brigades Standard is probably the most comprehensive ever proposed by OSHA and is hundreds of sections and subsections long. This article does not provide a comprehensive analysis of all of the issues associated with the proposed standard, but it does provide an explanation of some of the more significant issues.

For more information on OSHA’s proposed Emergency Response Standard, please join us for our upcoming webinar, “OSHA’s Proposed Rule to Expand Fire Brigades Standard to Other Emergency Response Workers,” which will take place on Friday, March 22, 2024, from 2:00 p.m. to 3:00 p.m. (EDT). The speakers, Frank D. Davis, John D. Surma, and Ryan J. Swink, will discuss the implications of the newly proposed standard and provide considerations for employers. Register here.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments with respect to OSHA’s proposed Emergency Response Standard and will publish updates on the Workplace Safety and Health blog as additional information becomes available. Further information on the proposed standard is available via the firm’s recent podcast program.

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