Across the country, companies are learning they need to ensure employees working both inside and out are adequately protected from heat-related risks. Earlier in the summer, OSHA issued the first-ever Hazard Alert for heat to remind employers of their obligation to protect workers against heat illness or injury in outdoor and indoor workplaces. The alert accompanied an announcement that OSHA would be ramping up enforcement of heat-safety violations and increasing inspections in high-risk industries.
While in the past focus on heat-safety violations may have been limited to the construction and agriculture industries, OSHA is now equally focused on heat-safety violations found in indoor work environments, such as manufacturing facilities. This expanded focus includes the manufacturing and warehouse industries. OSHA emphasized this focus in April 2022 when it established a National Emphasis Program (NEP) on Outdoor and Indoor Heat Hazards that, in part, focused on the manufacturing and warehouse industries. OSHA has also been conducting an annual heat awareness campaign for the last decade and in 2022, began its heat enforcement program.
Despite this enhanced focus on inspections and enforcement, OSHA has yet to put in place a national standard for workplace heat-safety rules. After being pressured to do so for more than a decade, OSHA started working on heat-safety standards in 2021. On August 30, 2023, OSHA released a “Regulatory Framework” meant to outline potential options for the elements of a future OSHA standard. This framework shows that OSHA is focused on a programmatic standard where employers are required to create a plan to evaluate and control heat hazards in their workplaces, but also permit some customization of those plans based on various factors. In the short term, this framework provides employers with an indication of the type of items OSHA may be looking for during a heat illness or injury inspection. However, this framework is far from a final OSHA standard and any final heat-safety standard will almost surely be challenged in the courts, potentially further extending implementation.
What Can Employers Do Now?
A good place to start is a thorough review of OSHA’s Regulatory Framework. The next step could be to draft and implement a written heat stress prevention program or heat illness prevention plan for your worksite or facility. Regardless of what it is called, the plan/program might include a hot weather plan and set out training for employees about heat stress. OSHA does provide a model or template plan, available here, where OSHA provides several general issues such plans should cover:
- training workers and supervisors on heat-illness prevention strategies;
- monitoring weather and workplace conditions;
- conducting a heat hazard assessment of common environmental and work-related heat stress factors, when appropriate;
- implementing heat-illness prevention strategies to reduce heat stress; and
- planning for heat-related medical emergencies.
When putting together such a program, it is important to focus on the indoor environment as much as the outdoor environment when evaluating employees’ risks to heat-related injuries or illnesses. For indoor environments, it can be important to evaluate the ambient temperature in the facility, ensure proper ventilation, and provide the ability for employees to rotate out of hotter and more strenuous tasks. For outdoor employees, it can be important to provide regular access to shade, paid time to rest, and access to cool water.
Training on avoiding heat-related injuries or illnesses might inform employees about the signs of heat stress, how to acclimate to hot environments, and recommend amounts of water and/or electrolyte-containing beverages and timing for consuming them, as well as the risks of drinking too much ice-cold water too quickly while in the heat.
An often-neglected piece of heat-safety for both outdoor and indoor employees, and a focus of the Regulatory Framework, is acclimation. In hot weather, it is crucial to allow employees time to acclimate to the heat. It is also important to allow employees to acclimate as they are exposed to increasingly hot temperatures, as well as when they are exposed to new tasks. OSHA has suggested an employee could need as many as five days to adjust to hot temperatures and employees being acclimated to new tasks may need to work less than a full shift if conditions are too hot. This may not always be feasible for temporary employees or worksites where employees cannot be rotated between hot and cooler tasks on a daily basis. In such cases, other methods for mitigating the dangers of excessive heat can be relied on.
Additional Employment Considerations
In addition, employers should be cognizant of the fact that in addition to OSHA guidelines and standards, employers are also obligated to address safety concerns under other employment laws. For example, under the Americans with Disabilities Act, and state law equivalents, employers that receive a request for a reasonable accommodation based on a medical condition must engage in the interactive process to determine whether an accommodation should be granted.
Employees may request a cooler environment, equipment for cooling, increased breaks, among other accommodations based on a medical condition. Employers are required to discuss these requests with the individual who has a medical condition. These types of employee requests cannot be summarily denied. Under other laws, such as the National Labor Relations Act, employees can raise concerns about working conditions, including temperature of the environment, and generally they cannot be disciplined or treated negatively for raising the concern.
For manufacturing clients who have safety and heat-related concerns, a competent attorney should be consulted to ensure that guidance is provided under the many laws that may be implicated.
Abby Warren, a partner with Robinson+Cole in their Labor, Employment, Benefits + Immigration Group. Jonathan Schaefer is a partner at legal firm Robinson+Cole in their Environmental, Energy + Telecommuncations Group.
