Analysis
In the midst of a series of record heat waves throughout the United States this summer, the Occupational Safety and Health Administration (OSHA) recently proposed indoor and outdoor workplace regulations aimed at combating heat illnesses and injuries that occur among the nation’s workforce.
Although these rules are not yet in effect and the proposal may not survive in its current form, the agency has been making the issue a priority for quite a while, focusing special attention on it under its current regulatory regime. In 2022, OSHA launched a National Emphasis Program (NEP) targeting heat-related problems at various workplaces across the country in a wide range of more than 70 specified industries, including general industry, construction, maritime and agriculture.
In the absence of a formal rule being in place, the agency has been acting under the authority granted by enabling legislation, the Occupational Safety and Health Act, in its General Duty Clause, which requires employers to “maintain a workplace free of recognized hazards that may cause death or serious bodily harm.”
States that also have created their own heat-related workplace rules include Minnesota, Oregon and Washington State, and California recently adopted a new heat illness prevention rule (delayed after one stakeholder meeting nearly erupted in violence).
Although court challenges are expected after the federal proposed rulemaking is finally adopted, failing to take into account the dangers of heat-related workplace hazards currently can lead to severe financial consequences for employers, notes attorney M. Adil Yaqoob of the Akerman law firm.
Recent citations and proposed penalties issued by OSHA for heat-related violations include $65,000 in penalties for a waste management company following the death of an employee from heat stroke, and a $151,527 penalty against a landscape servicing company when one of its employees died of heat exhaustion after trimming weeds.
Employers should be aware that OSHA can assess penalties up to $16,131 for each serious and other-than-serious violation, with a maximum penalty of $161,323 per violation for willful or repeat violations. “Penalties can add up, especially if multiple employees are exposed to heat-related dangers or if the employer was subject to prior penalties for similar violations,” Yaqoob points out.
Based upon the outcome of the upcoming national election and potential court challenges, there may be a halt of any rule that OSHA adopts. The final rule also could be reshaped by the comments OSHA receives. While employers can decide to take a wait-and-see approach, they still must have effective heat protection procedures in place, keeping in mind the NEP and OSHA’s ongoing program of employer heat inspections.
As a result, attorneys Charles Palmer and Malin Ehrsam of the Michael Best & Friedrich law firm strongly urge employers to review the proposed change in enforcement guidelines and take the opportunity to develop a detailed program that can stand up to both current and future scrutiny and better yet, protect the health of their workforce.
What Employers Should Do
Palmer and Ehrsam went into great detail outlining the proposed rule’s primary requirements, and also added what they believe employers should embrace as policies before the rule is finalized because they track closely with best practices currently being followed by conscientious employers.
Written Plans
The proposed rule would require employers to develop and implement a written worksite heat injury and illness prevention plan (HIIPP). Most employers do not have a written plan, so this represents a change, even though it is something OSHA already looks at when enforcing the general duty clause, requiring employers to recognize creating a plan as an exercise in due diligence.
“It is important for employers to develop more formal plans to keep workers safe already, and not just rely on common sense practices,” they stress. “OSHA will focus on worker heat illnesses and deaths to prove its case for a final rule. Industry efforts to protect workers will be watched closely, and some states have already passed regulations on the subject.”
The new rule’s written plan requirement would apply to those employers with more than 10 employees. While employers with 10 or fewer employees would not be required to put it in writing, they would still be obligated to have such a plan and be able to communicate it verbally to their workers in some fashion. If the rule is adopted, employers also would need to evaluate the effectiveness of their plans annually.
When updating the HIIPP, employers will be required to seek input from nonmanagerial employees and their representatives (meaning unions). The new rule also requires that supervisors and workers be trained to respond effectively to heat-related emergencies, including providing first aid and contacting emergency services.
Clothing
Clothing can be a risk factor for heat-related injury or illness. When it comes to the types of clothing mandated by the new rule, it is expected to be generally lightweight, light colored and breathable, as long as it is possible to wear such clothing without compromising worker safety, according to Palmer and Ehrsam. “Cotton is generally breathable and allows the body to cool down better than other fabrics,” they observe.
Reflective clothing that is designed to reflect radiant heat, such as vests, aprons or jackets, also could be used. Cooling vests may be effective but can become an insulator when they reach the body’s temperature, the attorneys note. Workers with outdoor jobs should wear hats to keep the sun off their faces. Most employers require pants, and sometimes long sleeves for protection against cuts, rashes or burns, but these rules may need to be addressed as the heat rises, Palmer and Ehrsam suggest.
Get Employees Used to Heat
Acclimatization
It is important to allow new workers who aren’t used to working in high heat environments and returning workers who have been away from the workplace to acclimatize to the working environment. Current recommendations include using a staggered approach over 7-14 days to give these workers time to get used to working in hot environments. Palmer and Ehrsam urge employers to start workers out with lower workloads and gradually increase the workload to get used to working in the heat.
The proposed rule requires implementation of acclimatization protocols during an employee’s first week on the job and spells out different protocols for both new employees and returning employees. It says that new employees should be gradually acclimatized, with the employee’s exposure to heat being restricted to no more than 20% of a normal work shift exposure duration on the first day of work, 40% on the second day, 60% on the third day, and 80% on the fourth day.
For returning employees, the rule would require a gradual acclimatization to heat, a process in which employee exposure to heat is restricted to no more than 50% of the workload on the first day of work, 60% on the second day, and 80% of the third day, as laid out by the proposal.
Acclimatization is especially important for summer youth or college workers who are just beginning to work as the heat rises, Palmer and Ehrsam add. “New employees are often less efficient and may overexert themselves while trying to do a good job to ‘prove’ themselves during their first few days. While this extra effort may be appreciated by employers, employers must ensure that new employees working in extreme heat conditions are kept safe. Education to offset this potential for overexertion may be necessary.”
Hydration
One simple and effective way to keep workers safe is by ensuring that they receive adequate opportunities for hydration, along with adequate rest and shade, the attorneys observe. “Drinking water, other cool beverages (sports drinks, etc.), ice and certain food items, such as popsicles, should be provided to workers.”
The current OSHA standard recommendation for water consumption is one cup of water every 20 minutes, not to exceed more than 48 ounces of water in an hour. Employers currently are expected to ensure that there is enough water available, and that it is easily accessible. Workers should also be encouraged to hydrate properly before, during and after work. The attorneys emphasize that employers need to remind workers that they shouldn’t wait until they are thirsty to hydrate.
The proposed rule requires access to one quart of drinking water, per employee, per hour, when temperatures are at or above the initial heat trigger (“a heat index of 80° F or a wet bulb globe temperature equal to the National Institute for Occupational Safety and Health (NIOSH) Recommended Alert Limit”). The water must be placed in locations that are readily accessible and are suitably cool.
What Color Is Your Urine?
Heat Breaks
The proposal requires frequent breaks based on the severity of the heat. Once ambient temperatures are at or above the high heat trigger (which OSHA defines as “a heat index of 90° F or a wet bulb globe temperature equal to the NIOSH Recommended Exposure Limit”), workers must be given more breaks of at least 15 minutes every two hours.
At outdoor work sites, artificial shade or access to an enclosed space with air-conditioning is required. For indoor worksites, there must be an area for employees to take breaks that is air-conditioned, or has increased air movement, such as by making use of fans. The proposed rule also emphasizes breaks and their importance to worker safety when temperatures are extreme.
When heat is extreme, workers should be given more breaks and be encouraged to take breaks by supervisors, Palmer and Ehrsam recommend. “Workers should be encouraged to speak up if they are feeling too hot. Opportunities to rest in the shade is crucial for outdoor worksites. If there is not any naturally occurring shade, pop-up tents can be used to create a shaded area.”
For indoor worksites, they say there should be a spot for workers to take breaks that is cooler, ideally air-conditioned, or has plenty of fans. The attorneys point out that employers also can provide cool towels for workers to cool down, and they note that some employers have rented water-misting stations for workers to use in extreme heat.
Education and Health Risks
The rule proposal requires that employees receive their initial training before they begin work in areas that are at or above the initial heat trigger defined by NIOSH.
Each employee will be required to receive training and understand heat stress hazards, heat-related injuries and illnesses and their risk factors, including the contributions of physical exertion, clothing, personal protective equipment, a lack of acclimatization and personal risk factors, signs and symptoms of heat-related illness, and which symptoms require immediate emergency action
Other mandated topics include the importance of removing PPE (such as gloves, boots, aprons, etc.) during rest breaks, how important it is to take rest breaks to prevent heat-related illness or injury, and that rest breaks are paid. Training also must include stressing the importance of drinking water to prevent heat illness, the location of break areas, and the location of employer-provided water.
Palmer and Ehrsam also urge employers should not wait for the final rule to be adopted to educate employees about personal risk factors that might make them more susceptible to heat illness, such as health conditions, medications, physical characteristics and behavioral characteristics that can be observed.
In this regard, employers should make sure to thoroughly train employees about how to recognize signs of heat illness and heat emergencies. “Urine output is one of the best measures of hydration. Placing signs in restrooms that describe the level of hydration based upon urine color are effective education tools,” they recommend.
Headaches or nausea, weakness or dizziness, heavy sweating and dry, hot skin, elevated body temperatures, thirst, and decreased urine output can all be signs of heat illness. If a worker is exhibiting any of those signs, they should be assisted in cooling down. Among other steps, this includes drinking cool water, removing any unnecessary clothing, taking a break in a cooler area, and cooling down with ice or a fan. These workers also should be monitored in case medical care is necessary.
In such situations, things can go from bad to worse quickly. “Heat emergencies are incredibly dangerous and can be fatal. Signs of a heat emergency include abnormal thinking or behavior, slurred speech, seizures and loss of consciousness,” Palmer and Ehrsam emphasize. “If a worker is exhibiting those signs, 911 should be called immediately, and the worker should be cooled down right away, with water or ice (ice bath, etc.). Somebody should stay with the worker until help arrives.”
The proposed rule requires employer plans to include monitoring procedures to observe employees for signs and symptoms of heat-related illnesses. Employers must include at least one of the following procedures: a mandatory buddy system in which co-workers observe each other, or observation by a supervisor or heat safety coordinator (with no more than 20 employees observed per supervisor).
For employees who are alone at a work site, employers should maintain a means of effective, two-way communication with those employees and make contact with the employees at least every two hours, Palmer and Ehrsam stress.
“Employers should be proactive and implement measures to keep workers safe when extreme heat presents a safety hazard, and most employers are mindful of these hazards already,” they say.
Employers also should keep an eye on future government efforts in this area, including OSHA enforcement of its heat NEP and state developments, including the new California workplace heat rules and some in metropolitan areas that have popped up in recent years. For example, in March, the Phoenix, Ariz., City Council adopted similar heat regulations for city contractors.
In Florida, however, Gov. Ron DeSantis recently signed House Bill 433 into law that preempts cities and counties from adopting heat stress prevention requirements, joining Texas in barring local governments from adopting such measures, reports attorney Aaron Vance of the Barnes & Thornburg law firm.
Vance agrees with Palmer and Ehrsam that even without a dedicated standard, employers should remain aware that OSHA is still enforcing the general duty clause against employers for heat stress injuries. As such, employers should be sure to evaluate heat-related risks and the steps that may be taken to avoid employee injury and illness in line with OSHA's current guidance.
“Employers need to be mindful of these new developments at the federal and local level—or be prepared to get burned,” Vance warns.
