In the past couple of months, the United States has been hit with a severe and unrelenting heat wave, with many cities on track to have their hottest summers in recent history. In response, the Occupational Safety and Health Administration (OSHA) announced a new, proposed rule on heat in the workplace. This new rule will require employers to create a plan to evaluate and control heat hazards in workplaces, both indoors and outdoors, where OSHA has jurisdiction.
So why did OSHA decide to create this proposed rule, what’s in the proposed rule, and how might the proposed rule affect your business?
Background on the Proposed Rule
According to OSHA, heat’s the leading cause of death among hazardous weather conditions in the United States. Excessive heat can lead to a variety of problems, including dehydration, heat exhaustion or heat stroke, exacerbation of health problems (kidney failure, asthma, etc.), severe sunburns, and even death.
The Bureau of Labor Statistics has estimated that heat is responsible for an average of 40 deaths a year, with 479 workers dying from heat exposure between 2011-2022. There were approximately 33,890 heat-related illnesses and injuries reported between 2011-2022 that resulted in days away from work.
This proposed rule first was introduced in late 2021 and became open for comment until January of 2022. OSHA received 965 comments from private citizens, businesses, and public interest groups on a variety of different issues surrounding the proposed rule. Following the comment period, OSHA established the Heat Injury and Illness Prevention Work Group within the National Advisory Committee on Occupational Health and Safety. This group was established to help provide recommendations for crafting the final rule.
Next, OSHA convened a Small Business Advocacy Review panel in order to receive input from small businesses on the proposed regulations. The panel held six video conferences, which the public was allowed to observe, where it received comments from small entity representatives from across a number of different employment fields including construction, utilities, and others.
Finally, OSHA brought the proposed regulation before the Advisory Committee on Construction Safety and Health (ACCSH) in April of 2024. The Committee unanimously encouraged OSHA to propose this standard on heat injury and illness prevention.
A Few Definitions to Know
Like many rules, this proposed federal rule utilizes a number of unfamiliar terms, or even familiar terms with a definition particular to this rule. Fortunately, OSHA has provided definitions for the terms used throughout the rule.
For example, one way in which employers are expected to monitor heat conditions is by measuring the heat index of a work area. The rule defines heat index to mean the National Weather Service heat index which combines the ambient temperature and humidity of an area to measure what the temperature feels like to the average human body.
In addition, the rule recognizes another heat metric known as the wet bulb globe temperature, or WBGT, which is defined as “a heat metric that takes into account ambient temperature, humidity, radiant heat from sunlight or artificial heat sources, and air movement.”
The rule also provides a few more important definitions:
- Initial heat trigger means a heat index of 80°F, or a WBGT equal to the National Institute for Occupational Health & Safety (NIOSH) Recommended Alert Limit;
- High heat trigger means a heat index of 90°F, or a WBGT equal to the NIOSH Recommended Exposure Limit;
- Ambient temperature means the temperature of the air surrounding the body;
- Acclimatization means the body’s adaptation to heat over time, which reduces the strain caused by heat and allows people to work in hot temperatures for a longer period of time;
- Work site means the physical location in which an employer’s work is performed; and
- Work area means an area where one or more employees are working in a work site.
Furthermore, the rule defines the signs and symptoms commonly associates with heat-related illnesses and heat emergencies, such as fainting, nausea, headaches, vertigo, muscle cramps, disorientation, and even convulsions. If the heat exposure goes unchecked, and these symptoms are left unaddressed, there could be fatal consequences. Thus, it’s important to keep an eye out for any of these symptoms.
Creating a Heat Illness and Injury Prevention Plan
As we said earlier, this proposed rule is going to apply to all areas of employment where OSHA has jurisdiction. That being said, this new rule does not apply to:
- Work activities for which there is no reasonable expectation of exposure at or above the heat trigger;
- Short duration employee exposures;
- Firefighting organizations, emergency medical services (EMS), technical search and rescue organizations, etc.;
- Work activities performed in indoor areas and air-conditioned vehicles consistently kept below 80°F;
- Telework/remote work; and
- Sedentary work activities, which usually involve sitting and occasional standing.
The proposed rule requires employers to create and implement a heat injury and illness prevention plan, or HIIPP, with information specific to the workplace. The HIIPP must include (i) a list of the work activities covered by the plan, (ii) all the policies and procedures that are necessary to comply with this new rule, and (iii) and identification of the heat metric that the employer plans to use.
In addition, the HIIPP must be in writing if an employer has more than ten employees, must be readily available to all employees at a work site, and must be available in a language that every employee and supervisor can understand.
The rule also requires that employers must designate at least one heat safety coordinator to implement, monitor, and ensure compliance with the HIIPP. If the HIIPP is written, the heat safety coordinator must be named in it. Furthermore, the HIIPP must be re-evaluated at least annually or after a heat-related injury or illness results in death, days away from work, medical treatment beyond basic first aid, and/or loss of consciousness. The employer must then update the HIIPP by seeking input from non-managerial employees and their representatives.
Indoor vs. Outdoor Work
The rule breaks up work into two categories: indoor work and outdoor work.
For outdoor work, employers can monitor heat conditions by tracking the local heat index provided by the National Weather Service, or by calculating either (a) the heat index at or as close as possible to the work area, or (b) the WBGT at or as close as possible to the work area.
In addition, an employer must monitor outdoor work areas with sufficient frequency in order to determine its employees’ exposure to heat. Furthermore, employers must provide outside break areas with sufficient shade and air conditioning where necessary (e.g., trailers and vehicles).
For indoor work, employers must monitor work areas where there is a reasonable expectation that employees may be exposed to heat that is equal to or higher than the initial heat trigger.
Similar to outdoor work, the employer must monitor the heat conditions of indoor areas using either (a) the heat index at or as close as possible to the work area, or (b) the WBGT at or as close as possible to the work area. Additionally, employers must also provide well-ventilated indoor break areas with air conditioning or at least increased air movement and a dehumidifier if necessary.
Employers also must note any changes to the outdoor temperature as well as any changes to production and/or equipment that may affect the indoor temperature. These changes must be noted in the HIIPP along with any plans to monitor such changes. Finally, as with outdoor work, employers should seek the input of non-managerial employees and their representatives when updating the HIIPP.
How Employers Can Monitor and Address Heat
In monitoring heat, employers may choose a heat metric, such as the WBGT, to monitor and then determine the applicable initial heat trigger and the high heat trigger. If an employer fails to choose a metric, the heat index values, as defined by the rule, will be the initial and high heat triggers.
Additionally, employers must provide training for employees and supervisors on heat stress hazards, heat-related illnesses, and the methods of monitoring heat. The training should be completed annually, and supplemental training should be provided where there are changes to heat exposure at the work site.
In addressing heat, the proposed rule states that an employer must do the following where employees are exposed to heat above the initial trigger:
- Provide at least one quart per employee per hour of potable drinking water that is suitably cool and placed in areas readily accessible to employees;
- Provide break areas for both indoor and outdoor work sites;
- Provide increased air movement from a fan, an air conditioned work area, or other measures that reduce employee heat for indoor work sites;
- Evaluate the use of fans to make sure that fan use isn’t harmful based on the humidity of the work site;
- Acclimatization for both new and returning employees, in which an employer slowly builds up the worker’s exposure to heat;
- Maintain effective communication with employees in order to monitor heat exposure; and
- Ensure the cooling properties of Personal Protective Equipment (PPE).
For exposure to high heat triggers, the same requirements as exposure at the initial trigger apply with the addition of providing a minimum 15-minute paid break every two hours.
Finally, if an employee is experiencing any of the signs or symptoms associated with a heat-related illness, the employer must (i) relieve the employee from duty, (ii) monitor the employee and ensure she’s not left alone, (iii) offer onsite first aid or medical services, and (iv) provide the employee with any means available to lower her body temperature. If the employee show symptoms of a heat emergency, such as heat stroke, the employer must call 911 and then take immediate action to reduce the employee’s body temperature.
What You and Your Business Can Do in the Meantime
Ultimately, if heat’s a condition in your workplace, the proposed rule places a much higher burden to create a work environment that adequately addresses worker safety. While this rule has not gone into effect yet, employers can take the following steps as they prepare the rule’s becoming effective:
- Identify any work areas with high exposure to heat, whether it is natural or artificial.
- Consider drafting a HIIPP that includes relevant activities, names the person who’ll monitor heat illnesses and injuries, and how heat will be monitored, among other things;
- Determine which heat metric you want to use;
- Designate break areas with adequate ventilation or air conditioning; and
- Provide cool, potable water to all employees.
By completing these steps, you’re not only preparing for when the final rule goes into effect, you’re also helping to secure the safety of your workers.
Questions or Concerns?
If you’ve got questions about the proposed rule, how OSHA applies to your workplace, or other questions regarding compliance with employment-related laws, we’re here to help. Contact us at 716.839.9700 or info@coppolalegal.com and we’ll be happy to help.
