CSG Law Alert: Beat the Heat: What Employers Need to Know About OSHA’s Proposed Heat Rule
The Occupational Safety and Health Administration (“OSHA”) published a proposed rule on August 30, 2024, titled “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings,” with the purpose of providing a standard for employers to evaluate and control heat hazards in the workplace.
Each year, thousands of workers are exposed to heat-related illness and injuries, some of which result in fatalities. In the United States, 34 fatalities are associated with occupational exposure to heat on average per year. While OSHA has previously relied on the Occupational Safety and Health Act (“OSH Act”) as well as other enforcement programs, the proposed rule aims to set forth clear guidelines for employers to protect employees from hazardous heat.
The proposed rule has the potential to reach a vast number of industries, but it provides for some notable exceptions. Industries and workers that have little to no risk of substantial heat exposure do not have to comply with the proposed rule. The exceptions include (1) work activities with no reasonable expectation of exposure; (2) work activities where employees are exposed to temperatures above the initial heat trigger for 15 minutes or less in a 60-minute period; (3) emergency personnel; (4) work activities performed in indoor areas or vehicles with air conditioning; (5) telework; and (6) sedentary work activities.
Under the proposed rule, employers would be required to implement a work site heat injury and illness prevention plan (“HIIPP” or “plan”). The plan must include comprehensive policies and procedures to ensure all affected employees understand heat hazards and what measures account for such hazards. The proposed rule will also require employers to identify heat hazards by monitoring conditions. The initial heat trigger proposed in the rule is 80 degrees Fahrenheit and the high heat trigger is 90 degrees Fahrenheit.
The proposed rule provides requirements for both the initial heat trigger and the high heat trigger. At the initial heat trigger, the proposed rule would require employers to provide the following protections during the time when employees are exposed: (1) access to suitably cool and palatable potable water; (2) readily accessible break areas at outdoor work sites with shade or air-conditioning; (3) readily accessible break areas at indoor work sites with air-conditioning and increased air movement; (4) indoor work area controls; (5) if using fans, evaluation of harmfulness of fan use; (6) implementation of an acclimatization protocol; (7) paid rest breaks; (8) implementation of an effective two-way communication system to educate and notify of heat-related hazards; and (9) maintenance of cooling properties of personal protective equipment if provided to employees. Along with the protections at the initial heat trigger, an employer would need to implement the following additional protections when employees are exposed at or above the high heat trigger: (1) observation and identification of signs and symptoms of heat-related illness; (2) issuance of a hazard alert; and (3) placement of legible, visible, and understandable warning signs at indoor work areas.
Employers would also be responsible for providing training on heat-related illness and injury prevention. For indoor work areas with a reasonable expectation of exposure to heat at or above the initial trigger, the proposed rule further requires employers to keep written or electronic records of on-site temperatures.
Penalties for failure to comply with OSHA standards consist of fines ranging from $7,000 to $14,000 per violation, with an increase for willful or repeat violations. Penalties will also increase in cases of severe non-compliance resulting in injury or death.
OSHA proposes an effective date 60 days after the publication of the final standard in the Federal Register. If finalized, employers would need to comply with all requirements within 90 days of the effective date. The public comment period ends on December 30, 2024. The proposed rule, if finalized, however, may face challenge under the Congressional Review Act, and some believe the incoming Trump administration could abandon the proposed rule entirely.