OSHA’s Proposed Heat Illness Prevention Standard Is at the White House for Review: What’s Next?

Quick Hits

• OSHA sent its proposed standard on indoor/outdoor heat illness prevention to OIRA for review, but OIRA has no deadline for completing the review and the process may be lengthy—or not, since the Biden administration has prioritized protecting workers from excessive heat.
• The proposed rule is not publicly available. Based on the information OSHA has provided to date, the proposal is likely to include provisions such as temperature triggers, acclimatization requirements, mandatory rest breaks, written heat illness prevention programs, and employee training.
• OSHA continues to inspect workplaces to determine whether employees are adequately protected from excessive heat, but it has issued relatively few General Duty Clause citations alleging overexposure to heat and has been largely unsuccessful in sustaining violations in litigation.

What Will Be in the Proposed Standard?

OSHA’s draft of the proposed standard is not publicly available, but OSHA has provided clues regarding the provisions that will likely be included. As required, OSHA convened a Small Business Regulatory Enforcement Fairness Act (SBREFA) panel of small businesses to provide input on the impact of a heat illness prevention standard. OSHA provided the panel with a range of regulatory options to consider. Those options included:

• The standard will apply when temperatures hit a certain level. The triggers vary depending on how the temperature is measured (e.g., forecasted temperature, heat index, temperature measured at the work site), and could be as low as a forecasted heat index of 76°F.
• Employers will be required to acclimatize workers by gradually exposing them to high temperatures to let their bodies adjust. The requirement could be a step-wise process where new workers and workers returning from an absence would be permitted to work 50 percent of a shift the first day, 60 percent the second day, etc. OSHA also proposed a more flexible process requiring supervisors to monitor new/returning workers closely and implement a “buddy system.”
• Mandatory rest breaks would be required, and the duration and frequency of the breaks would increase when temperatures rise.
• Employees will have to be trained on the employer’s program, the signs and symptoms of heat stress, and how to respond when a coworker shows symptoms.
• Employers will likely be required to develop and implement a written program.

Some of these provisions may make it difficult for OSHA to craft a standard that will withstand a legal challenge. For example, OSHA must show that the standard addresses a “significant risk,” which will require data that employees exposed at the trigger temperatures identified by OSHA are at risk. This issue is complicated by the fact that exposure to high heat alone is typically not hazardous—workers must also be performing moderate or strenuous work that results in an inability to dissipate heat. These factors may make it difficult for OSHA to prove that the standard effectively targets a significant risk. This is particularly true when temperature variables throughout the United States are considered. A temperature of 76°F may be a hazard in Maine or New Hampshire, but is it a hazard in Texas or Florida?

Employers may have difficulty complying with some of the provisions likely to be included. For example, a provision requiring workers who have been away from work for a week to be reacclimatized under the step-wise system described above would be difficult to administer and could result in the employer hiring replacement workers. Similarly, a mandatory break provision could discount the rest periods inherently built into the workday, such as time spent performing a job briefing, traveling to other worksites, or performing work that is not strenuous.

What Is the Next Step?

OIRA review is the final step OSHA must complete before issuing a proposed standard. Once OIRA’s review is complete, OSHA will publish the proposed standard in the Federal Register and employers and other interested parties will have the opportunity to comment. OIRA has no deadline to complete its review. OIRA is required to review all executive branch regulatory actions and the review process is comprehensive, particularly with regard to compliance cost estimates and feasibility findings. Given the likely complexity of OSHA’s proposal, the OIRA review process may be lengthy. Also, the White House is typically eager to issue final regulations as the end of the term approaches, and review of proposed actions may be put on the back burner.

On the other hand, the White House has been focused on climate change and protecting workers from excessive heat. For example, on July 27, 2023, the White House ordered OSHA to issue the “first-ever Hazard Alert for heat” and to “ramp up enforcement to protect workers from extreme heat.” When OSHA issued its National Emphasis Program (NEP) for heat in April 2022, Vice President Kamala Harris and then–Secretary of Labor Marty Walsh announced the program at a press conference at a Sheet Metal Workers Local 19 training center in Philadelphia. The White House focus on this issue may speed up the OIRA review process.

What Steps Should Employers Take?

OSHA continues to issue citations under Section 5(a)(1) of the OSH Act, commonly referred to as the General Duty Clause. The NEP describes the kind of information OSHA enforcement personnel will evaluate during inspections. This article provides recommendations for heat illness prevention programs and navigating inspections conducted pursuant to the NEP.

Despite the fanfare from OSHA regarding enforcement, OSHA has issued relatively few General Duty Clause citations alleging overexposure to heat. As of February 2024—almost two years after implementation of the NEP—OSHA had issued fifty-three citations alleging overexposure to heat. General Duty Clause cases can be difficult for OSHA to prove, and that is particularly true with a somewhat amorphous hazard like heat. As a result, OSHA has often not been successful in sustaining violations in litigation. The Occupational Safety and Health Review Commission vacated citations in the Secretary of Labor v. Sturgill Roofing and Secretary of Labor v. United States Postal Service cases. OSHA cited the Sturgill holding as one reason a standard is necessary.

Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor developments and provide updates on the Workplace Safety and Health blog as additional information becomes available.

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