Employment Law Update: Employers Feel the Heat: OSHA Proposes Workplace Regulations to Address Extreme-Heat-Causing Illnesses
Date: July 18, 2024
By:
Lisa M. Brauner
On July 2, 2024, the Occupational Safety and Health Administration (OSHA) released a proposed rule aimed at mitigating worker illnesses from extreme heat in indoor and outdoor work settings. This proposed Heat Injury and Illness Prevention standard – publicized through a Notice of Proposed Rulemaking – arrives at a critical juncture due to the alarming rise in temperatures in the U.S. and globally.
OSHA’s Proposed New Heat Illness Rule
OSHA’s heat illness prevention rule, if adopted, would require all covered employers to implement specific measures to protect workers from heat stress. Key provisions include:
- Developing and implementing a heat injury and illness prevention plan (HIIPP) to control heat hazards in workplaces affected by excessive heat (a written plan, if more than 10 employees) and designating a coordinator to implement and monitor the plan;
- Identifying and evaluating heat hazards, including monitoring heat conditions at outdoor worksites and identifying work indoor work areas where there is a reasonable expectation that employees may be exposed to heat at or above the initial heat trigger [1],
- When heat increases risks to workers (at or above the initial heat trigger), providing access to cool drinking water; providing rest breaks when needed; providing break areas at outdoor worksites with shade, or air conditioning; providing air-conditioned break areas or with increased air movement at indoor worksites;
- Observing employees for signs and symptoms of heat-related illness;
- Implementing indoor work area heat controls;
- Providing a plan to acclimatize new and returning workers to a high-heat workplace;
- Reviewing and evaluating the HIIPP’s effectiveness whenever a heat-related illness or injury occurs that results in death, days away from work, medical treatment beyond first aid, or loss of consciousness, at least annually, and make needed updates (with input on updates from non-managerial employees and their representatives);
- Requiring employers to develop and implement emergency response procedures for responding to heat-related incidents where a worker is experiencing signs/symptoms of a heat-related illness and taking immediate action to aid that worker; and
- Requiring employers to provide workers with training on recognizing the signs of heat-related illnesses, administering appropriate first-aid measures, and taking immediate action during heat emergencies.
What Happens Next?
The proposed rule has been submitted to the Federal Office of the Federal Register for publication. Once the proposed rule is published in the Federal Register, there will be a public comment period and a public hearing is anticipated. Thereafter, OSHA will review the comments and may adjust the proposed rule based on the feedback received before publishing a final rule. The proposed rule, if adopted, would likely not take effect until the summer of 2025. OSHA believes that its proposed rule, once implemented, will help protect approximately 36 million workers and significantly reduce heat-related injuries and illnesses.
How will the Supreme Court’s Reversal of Chevron Impact the Proposed Rule?
OSHA’s proposed rule comes in the wake of a pivotal Supreme Court decision that has fundamentally reshaped the landscape of regulatory authority. With the Supreme Court’s recent Loper decision overturning Chevron, the burden now falls on agencies like OSHA to justify their regulatory actions with greater specificity and clarity. This shift may lead to legal challenges to OSHA’s heat illness rule or to citations issued by OSHA in connection with the heat illness rule by business groups or employers who may argue that the agency has overstepped its statutory authority.
Whiteford will continue to monitor OSHA’s proposed rule and update our readers with any important developments.
[1] Initial heat trigger means a heat index of 80 degrees Fahrenheit or a wet bulb globe temperature equal to the NIOSH Recommended Alert Limit.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.
The proposed rule has been submitted to the Federal Office of the Federal Register for publication. Once the proposed rule is published in the Federal Register, there will be a public comment period and a public hearing is anticipated. Thereafter, OSHA will review the comments and may adjust the proposed rule based on the feedback received before publishing a final rule. The proposed rule, if adopted, would likely not take effect until the summer of 2025. OSHA believes that its proposed rule, once implemented, will help protect approximately 36 million workers and significantly reduce heat-related injuries and illnesses.
How will the Supreme Court’s Reversal of Chevron Impact the Proposed Rule?
OSHA’s proposed rule comes in the wake of a pivotal Supreme Court decision that has fundamentally reshaped the landscape of regulatory authority. With the Supreme Court’s recent Loper decision overturning Chevron, the burden now falls on agencies like OSHA to justify their regulatory actions with greater specificity and clarity. This shift may lead to legal challenges to OSHA’s heat illness rule or to citations issued by OSHA in connection with the heat illness rule by business groups or employers who may argue that the agency has overstepped its statutory authority.
Whiteford will continue to monitor OSHA’s proposed rule and update our readers with any important developments.
[1] Initial heat trigger means a heat index of 80 degrees Fahrenheit or a wet bulb globe temperature equal to the NIOSH Recommended Alert Limit.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.