On October 27, 2021, the Occupational Safety and Health Administration (OSHA) published an Advance Notice of Proposed Rulemaking (ANPRM) on “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.” The ANPRM provides an overview of heat stress in the workplace (both indoors and outdoors) and the various measures taken to prevent it and protect workers from it. Click here to view the ANPRM Federal Register notice.
Extreme heat can be deadly, and Bureau of Labor Statistics data show it killed nearly 1,000 US workers and seriously injured more than 70,000 workers from 1992 through 2017. But heat illness causes many times more workplace injuries than official records capture due to related injuries from falls, being struck by vehicles, and mishandling machinery due to heat stroke/stress and related difficulties in concentration or fainting. Data presented to the US Congress in 2021 (UCLA study) found that on days when temperature is between 85F and 90F, overall risk of injury (regardless of official cause) was 5-7% higher than on days when temps were in 60s, and when temperatures topped 100F, overall risk of injury was 10-15% greater.
Until recently, OSHA had taken enforcement action against employers who exposed workers to excess heat via the General Duty Clause (Section 5(a)(1) of the OSH Act of 1970), but In 2019, OSHA lost a key heat stress case where OSHRC held it could not use the National Weather Services’ “Heat Index” for enforcement - Secretary of Labor v. A.H. Sturgill Roofing, Inc. This necessitated a rulemaking in order for OSHA to be able to regulate this hazard at the federal level.
Employers should bear in mind that several state-run OSHA programs already require heat stress prevention programs, either as part of an Injury & Illness Prevention Program (IIPP), or as a state-specific standard (California, Minnesota, Oregon and Washington State). These state standards have provisions requiring access to water and shade for employees during hot temperatures. State standards may be more stringent than any federal rule but must offer at least equivalent protections.
There is also pending legislation that would require OSHA to promulgate a heat stress standard. S 1068 and HR 2193 – Asuncion Valdivia Heat Illness and Fatality Prevention Act of 2021. The legislation defines “Excessive heat “ as including outdoor or indoor exposure to heat at levels that exceed the capacities of the body to maintain normal body functions and may cause heat-related injury, illness, or fatality. It would require any OSHA standard to include requirements concerning (1) training and education to prevent and respond to heat illness, and (2) whistle-blower protections.
Stakeholders (employers, contractors, temporary agencies, workers, unions, academics, etc.) may submit comments and attachments concerning the ANPRM, identified by Docket No. OSHA–2021–0009, electronically at www.regulations.gov (Federal e-Rulemaking Portal). All submissions must include the agency’s name (OSHA) and the docket number for this ANPRM (Docket No. OSHA–2021–0009). When submitting comments or recommendations on the issues that are raised in this ANPRM, commenters should explain their rationale and, if possible, provide data and information to support their comments or recommendations. Wherever possible, please indicate the title of the person providing the information and the type and number of employees at your worksite.
OSHA seeks public comment on the nature and extent of hazardous heat in the workplace and interventions and controls to prevent heat-related injury and illness, including measuring heat exposures, strategies to reduce it, personal protective equipment and other controls, and worker training and engagement. The comment deadline is December 27, 2021. Following conclusion of the ANPRM stage, OSHA will move forward with a proposed rule, and there will additional opportunity for comment and public testimony at that stage.
For further information on heat stress prevention programs, or in developing comments on the ANPRM, contact Adele Abrams at safetylawyer@gmail.com or 301-595-3520.
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