In October 2021, the Occupational Safety and Health Administration (OSHA) published an Advanced Notice of Proposed Rulemaking requesting public input on the effectiveness of interventions and controls used by employers to prevent heat-related injury and illnesses. This request for information marked the agency’s first step in developing a federal heat-specific workplace standard. By formulating a standard that is specific to heat-related injury and illness prevention, OSHA will have the authority to clarify employer obligations to protect workers from hazardous heat. Since then, OSHA issued a first-of-its-kind heat hazard alert that emphasizes employers’ responsibility to protect workers against heat illness or injury in both outdoor and indoor workplaces. Additionally, the agency released a set of possible components that could formulate a federal heat standard.
August 2023 OSHA Proposed Outline on Potential Elements of Federal Heat Standard
If enacted as written prior to consultation from small business representatives, OSHA’s federal heat standard would establish the following requirements for employers:
- Develop a written Heat Injury and Illness Prevention Program (HIIPP) that includes medical treatment and emergency response procedures.
- Monitor weather conditions at outdoor work sites.
- Require certain control measures at a temperature-based “initial heat trigger,” measured either by a forecast prediction or on-site. The trigger when using a forecast could be 78 degrees or higher, and an on-site measure would be 82 degrees or higher.
- Provide access to cool-down and shaded areas, air-conditioned spaces and drinking water.
- Conduct heat hazard awareness trainings.
Recommendations from SBAR Panel Final Report
OSHA convened a Small Business Advocacy Review (SBAR) Panel to assist in the development of a potential HIIPP requirement. The report included several recommendations that would provide employers with greater flexibility, including the ability to tailor HIIPPs based on local climates and the nature of certain activities conducted at a workplace. The SBAR Panel also suggested that OSHA reconsider proposed heat triggers and provide additional data supporting the selected temperatures. OSHA is required to address the panel’s recommendations before issuing a final rule.
National Club Association Outlook and Considerations
During a National Safety Council (NSC) Safety Congress and Expo in October, OSHA officials told participants that the agency was aiming to release the proposed heat illness standard in the first half of 2024. Currently, OSHA relies on the General Duty Clause to enable the issuance of heat-related citations and bolster its three-year National Emphasis Program (NEP) on heat-related hazards. However, the General Duty Clause limits OSHA to imposing penalties against employers only after a worker has died or been injured.
In August, the 6th U.S. Circuit Court of Appeals issued a ruling validating OSHA’s legal authority granted by Congress in 1970. The ruling specified that OSHA’s legal authority is limited to adopting rules that are “reasonably necessary or appropriate” to address known health risks. In 2016, CDC’s National Institute for Occupational Safety and Health (NIOSH) conducted an analysis of existing research on the impact of heat stress on workers’ health and updated recommendations for employers to proactively avoid heat-related illnesses and injuries.