OSHA’s Proposed Heat Injury and Illness Prevention Standard in Focus: Analysis and Review

Quick Hits

• On July 2, 2024, OSHA released a comprehensive heat injury and illness prevention regulatory proposal that would affect all employers nationwide and require, among other things, a written heat injury and illness prevention plan, substantial heat injury–related precautions, training, and regular, comprehensive program reviews and updates.
• This follows a lightning-fast review of the proposed rule by the White House Office of Information and Regulatory Affairs.
• The proposed rule has not been officially published, but we anticipate a quick turnaround, which will start the comment period.
• We anticipate several challenges to the rule if it is implemented as written.

OSHA has been working on the proposal since 2021 and has also engaged in enforcement activity through the National Emphasis Program—Outdoor and Indoor Heat-Related Hazards issued in April 2022. The proposed standard is broad and covers all employers with employees working indoors or outdoors when the heat index is 80°F or higher. Once the proposal is published in the Federal Register, interested parties will have 120 days to submit comments. As discussed further below, the comment process will be critical. In some instances, the employer’s compliance obligations are unclear and feedback from industry regarding feasibility will be important. The proposal also raises questions regarding whether OSHA can prove that the standard addresses a significant risk of harm. Things are just starting to warm up, so stay tuned for more.

OSHA’s Proposed Standard: What Actions Would Employers Have to Take?

Scope: When does the standard apply?

The proposed standard would apply to all employers and be triggered when employees are exposed to heat indexes of 80ºF—defined as the “initial heat trigger”—for more than fifteen minutes in any sixty-minute period. Employers with outdoor work sites would be required to monitor the temperature with “sufficient frequency to determine with reasonable accuracy employees’ exposure to heat.” For indoor work sites, employers would identify areas where the heat index could be 80ºF or more and include a temperature “monitoring plan” in their written heat injury and illness prevention plan (HIIPP).

The proposal includes additional provisions—e.g., more breaks, an observation/buddy system to monitor workers for signs of heat illness, and training—that would apply at the “high heat trigger” of a heat index of 90ºF. Employers would be required to monitor temperatures to determine when the high heat trigger is met. Given temperature fluctuations that occur even during a single work shift, employers would have to monitor temperatures carefully to determine when the HIIPP must be implemented. Rather than monitoring, an employer may assume that the temperatures will reach the initial and high heat triggers.

The proposed heat triggers mean the employer’s HIIPP would be in effect on some days, but not others. An employer with outdoor workers in Texas or Florida could be required to deploy the HIIPP for multiple days throughout the year while the HIIPP for an employer in Maine or Massachusetts might be in effect more sporadically.

The HIIPP: What must be included?

The proposed rule sets forth a written HIIPP requirement for all employers with more than ten employees. The plan would include the following:

• a “comprehensive list of the types of work activities covered by the [HIIPP]”;
• a description of how the employer complies with the OSHA standard;
• the means the employer will use to monitor temperatures (e.g., heat index or web bulb globe temperature);
• emergency phone numbers and procedures employees must follow when an employee experiences signs and symptoms of a heat-related illness; and
• a list of the “heat safety coordinators” with “authority to ensure compliance with all aspects of the HIIPP.”

Employers would be required to “review and evaluate the effectiveness” of the HIIPP whenever a recordable heat illness occurs and update the HIIPP “as necessary.” This means that a review would have to be performed any time an employee receives medical treatment, such as an IV, or misses a day of work due to overexposure to heat. For large employers with many outdoor workers, these reviews could be frequent.

Protective measures: What steps would be required to protect employees?

The proposal includes an extensive list of heat injury prevention measures that employers would implement, including:

• readily accessible “cool” drinking water in an amount greater than one quart per hour per employee;
• break areas for outdoor work sites that are artificially or naturally shaded (shade from equipment is not sufficient) or enclosed spaces with air conditioning;
• break areas for indoor work sites that are air-conditioned or have “increased air movement” from fans or natural ventilation; dehumidification would be required “if appropriate”;
• “allow[ing] and encourag[ing] employees to take paid rest breaks” as “needed to prevent overheating”; and
• two-way communication with employees.

If the high heat trigger of a heat index of 90ºF was met, the following additional protective measures would have to be implemented:

• paid fifteen-minute rest breaks every two hours;
• a “hazard alert” issued by the employer to notify employees of the importance of staying hydrated and taking the mandatory rest breaks (as well as additional breaks as needed) and the procedures to follow in an emergency;
• one of the following methods of monitoring employees for signs and symptoms of heat illness: a buddy system where coworkers observe each other or observation by a supervisor or heat safety coordinator.

One issue that OSHA will likely need to resolve: the proposal contains no definition of what constitutes a break. Specifically, does time spent driving from one work site to another count as a break? What about sedentary time spent in the heat performing a job briefing or similar activities?

Acclimatization: How would new and returning workers have to adjust to working in the heat?

The guidance published by the American Conference of Governmental Industrial Hygienists (ACGIH) and the National Institute for Occupational Safety and Health (NIOSH) includes acclimatization schedules with ramp-up periods. For example, NIOSH recommends: (1) new workers work no more than 20 percent of their shift in the heat on day one, 40 percent on day two, etc.; and (2) workers who have been absent from work for seven or more days spend no more than 50 percent of their time working in the heat on day one, 60 percent on day two, 80 percent on day three, and 100 percent on day four. These types of systems are difficult to implement and administer and can be costly if the employer is required to hire additional workers to staff a complete work crew. As such, the employer community was justifiably concerned that OSHA would propose mandating this type of system.

OSHA chose not to do so. Instead, OSHA has proposed two options. For new employees, employers may implement a ramp-up system identical to the NIOSH recommendation discussed above or they may apply the provisions applicable to the high-heat trigger to new employees. In other words, an employer could choose to provide fifteen-minute breaks every two hours, monitor, and provide the hazard alert information to new employees even when the temperature is below the high heat trigger of 90ºF. For workers absent for fourteen days or more, employers could choose to implement the NIOSH system described or apply the high-heat provisions to returning workers even when the temperature is below 90ºF.

Emergency response procedures: What does OSHA propose?

OSHA’s proposed rule calls for employers to develop procedures for “responding to an employee experiencing signs and symptoms of heat-related illness.” Those procedures would require that employers do the following for employees with symptoms: “relieve [the employees] from duty”; “monitor [them]”; “ensure that [the] employees … are not left alone”; provide “on-site first aid or medical services”; and “provide [the] employees … with means to reduce their body temperature.” If an employee is experiencing symptoms of a “heat emergency,” the employer would have to “take immediate actions to reduce the employee’s body temperature” and immediately call emergency medical services. “Signs and symptoms of heat-related illness” is a defined term that includes “headache, nausea, weakness, dizziness, elevated body temperature, muscle cramps, and muscle pain or spasms.” A “heat emergency” occurs when “the physiological manifestations of a heat-related illness” require “emergency response” and the term includes “excessive body temperature” accompanied by “loss of consciousness” or “disorient[ation].”

These terms are both broad and vague, and they place significant responsibility on frontline supervisors and field employees. For example, field supervisors/employees would be required to determine when symptoms require monitoring or are significant enough to require emergency medical services. The proposal also fails to define when body temperature is “excessive” and what types of steps the employer must take to reduce body temperature. Most importantly, what liability will the employer have when the supervisor/field employee makes the wrong call and does not properly treat symptoms that may be complex and complicated by personal medical conditions?

Training: Who must be trained and what must be included?

Training would have to be provided to all employees covered by the HIIPP. The training includes a wide range of information, including the provisions in the HIIPP, risk factors for heat stress, the importance of taking rest breaks and drinking water, how to recognize signs and symptoms of heat-related illness and which ones require immediate action, and the prohibition on retaliation for taking breaks. Supervisors would receive additional training on how to monitor temperature and what to do when an employee shows signs of heat illness.

The training would be provided before the HIIPP is implemented and annually thereafter. “Supplemental training” would be provided when there are changes to work tasks, the HIIPP is amended, the employee “has not retained the necessary understanding,” or when a heat-related illness results in a recordable injury/illness.

OSHA’s proposal to require retraining and a review of the HIIPP whenever a recordable heat-related illness occurs is troubling. The ability of an employee to work in the heat is highly personal, and depends to some degree on age, physical fitness, personal medical conditions, the individual physiology of the employee, and factors such as the amount of alcohol the employee consumed the night before. Expert authorities (including NIOSH, ACGIH, and others) acknowledge that even if an employer implements a perfect heat illness program, signs and symptoms of heat illness may inevitably manifest in certain employees. OSHA’s failure to account for these factors in the proposal will likely be addressed in stakeholder comments.

What Are the Next Steps and When Will OSHA Issue a Final Standard?

Stakeholders will have 120 days to file comments on the proposal. The 120-day comment period (which OSHA may ultimately extend) will start to run when OSHA publishes the proposal in the Federal Register, which is likely to occur the week of July 8, 2024.

Once comments are filed, OSHA will review them and publish a final standard. When OSHA publishes its fall regulatory agenda, a target date for a final standard will likely be included. OSHA and the White House are clearly eager to finalize the standard. As required by executive order, OSHA submitted the proposed standard to the White House Office of Information and Regulatory Affairs (OIRA) on June 11, 2024, and OIRA completed its review in a mere three weeks—lightning speed in federal government terms.

The fate of the final standard may be tied to the results of the upcoming presidential election. If OSHA finalizes the standard during President Biden’s term and he ultimately loses reelection, the standard will be vulnerable to a congressional challenge under the Congressional Review Act. If a final standard is not issued and President Biden is not reelected, then a Republican administration may abandon the rulemaking.

Legal Challenges Ahead?

A lawsuit challenging the final standard is almost inevitable. The Supreme Court of the United States’ recent decisions—including, in January 2022, its decision to stay enforcement of the COVID-19 emergency temporary standard (ETS), resulting in OSHA’s withdrawal of the rule—have changed the landscape of administrative law, and those decisions could be critical when the federal courts consider a challenge.

The final standard may be most vulnerable with regard to OSHA’s proof that temperatures at the initial heat trigger result in a “significant risk of harm.” Section 3(8) of the Occupational Safety and Health Act requires that standards be “reasonably necessary or appropriate,” which the Supreme Court has construed to mean that OSHA must find that “significant risks are present and can be eliminated or lessened by a change in practices.” Industrial Union Department, AFL-CIO v. American Petroleum Institute (“Benzene”), 448 U.S. 607, 642 (1980). The U.S. Congress intended that OSHA regulate unacceptably severe occupational hazards rather than “establish a utopia free from any hazards” or address risks comparable to those that exist in virtually any occupation or workplace. 116 Cong. Rec. 37614 (1970), Leg. Hist. 480–82, noted in 81 Fed. Reg. 16286, 16290 (2016) (silica).

In the rulemaking record, OSHA relies on Benzene to support its finding that heat levels at the initial heat trigger pose a significant risk of harm, and states that OSHA is not required to prove with “scientific certainty” that workers face significant risk and may err on the side of “overprotection.” Benzene, 448 U.S. at 656. While that may be true, the issue is the nature of this particular hazard. With a typical health hazard, OSHA has data showing ill effects at a certain threshold. For example, in promulgating the Hearing Conservation standard, 29 C.F.R. 1910.95, OSHA could point to data showing that exposure to a specific noise level over a typical work shift would result in hearing loss to a particular percentage of employees. With heat, that type of data is not evident. A healthy employee working at temperatures of 75°F may experience a heat illness due to a personal medical condition, prescription medications, or simply because his or her physiology makes it difficult to dissipate heat and regulate body temperature. A different employee may be able to work at 95°F with no issues.

The significant risk analysis is complicated by differences in temperature throughout the geographic areas covered by federal OSHA. A temperature of 80°F might pose a significant risk in Maine but it might not pose that same risk in Texas or Florida where people are acclimatized through normal, everyday activities. Regardless of the data OSHA offers, OSHA must show that a significant risk of harm exists throughout the states federal OSHA covers. Moreover, the Benzene decision makes clear that “safe” is not the equivalent of “risk-free.” There are many activities that we engage in every day—such as driving a car or even breathing city air—that entail some risk of accident or material health impairment. A federal court may find that, given temperature trends, temperatures of 80°F do not expose employees in warmer states to unreasonable harm.

What Steps Should Employers Take Now?

No federal OSHA standard addressing heat injury and illness prevention has been finalized. At this point, OSHA uses the General Duty Clause to issue citations alleging employers are not taking adequate steps to protect employees from heat hazards. Many employers already have heat illness prevention plans that include many of the elements proposed by OSHA, and state OSHA plans in California, Minnesota, Oregon, and Washington have existing standards that include some of the same provisions federal OSHA proposes. To the extent employers have existing heat illness prevention plans, no changes are required by OSHA’s proposal.

Employers may want to consider evaluating existing plans to determine whether the elements OSHA proposes are included. If an employer can show that its existing plan contains the elements OSHA proposes, OSHA will likely not be able to sustain a violation of the General Duty Clause. Also, comments from industry regarding the feasibility and practical difficulties of implementing programs containing the elements OSHA proposes are critical to shaping the final standard.

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

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