On Oct. 27, 2021, OSHA issued an Advance Notice of Proposed Rulemaking (ANPRM) on Heat Injury & Illness Prevention in Outdoor and Indoor Work Settings. 86 Fed. Reg. 59309 (Oct. 27, 2021). As announced in the ANPRM, OSHA is seeking information about the extent and nature of hazardous heat in the workplace and the nature and effectiveness of interventions and controls used to prevent heat-related injury and illness. Comments on the Proposed Rule must be submitted by Dec. 27, 2021.
Because outdoor and indoor work settings that lack adequate climate-controlled environments pose a risk of hazardous heat exposure for workers, the proposed rule applies to both indoor and outdoor work environments.
Why the rule is being proposed
OSHA is proposing the rule for a number of reasons:
- According to recent studies, the three-year average of heat-related fatalities among U.S. workers has doubled since the early 1990s. This is so despite the fact that heat-related illnesses, injuries, and fatalities are known to be underreported.
- Hazardous heat conditions can impair job tasks related to complex cognitive function, reduce decision-making capability, and reduce productivity.
- There are some health conditions related to occupational heat exposure that can take many years from the period of exposure to manifest.
Currently, OSHA does not have a specific standard governing hazardous heat conditions at workplaces. OSHA has relied on the General Duty Clause to cite employers for heat-related hazards for decades, and it has also issued various forms of guidance related to hazardous heat for employers and employees in its Regional Emphasis Programs. According to the proposed rule, a “standard specific to heat-related injury and illness prevention would more clearly set forth employer obligations and help employers to identify the measures necessary to more effectively protect employees from hazardous heat.”
As of October 2021, several states have enacted rules related to hazardous heat, including California, Minnesota, Washington, and most recently, Oregon, which enacted a temporary rule in July 2021 following a period of temperatures exceeding 100 °F. Colorado, Maryland, and Nevada have passed laws requiring the promulgation of rules related to hazardous heat in the workplace.
Scope of the proposed rule
OSHA acknowledges that hazardous heat affects a multitude of industries and has resulted in at least one heat-related inspection by OSHA in over 230 unique industries since 2018. At highest risk are those workers with moderate, heavy, or very heavy categories of exertion. The rule solicits information on, and is likely to affect, large and small employers alike, with a multitude of work arrangements, across the United States (and especially in southern U.S. states, including Mississippi, Arkansas, Nevada, West Virginia, and South Carolina).
The proposed rule cites a number of strategies to reduce occupational heat-related injuries illnesses, including:
- heat injury and illness prevention programs;
- engineering controls, administrative controls, and utilizing personal protective equipment (PPE);
- acclimatization (the process of the human body becoming accustomed to new environmental conditions by gradually adapting to the conditions over time);
- monitoring the physiological, medical, and exposure of workers;
- planning and responding to heat-illness emergencies; and
- worker training and engagement.
An acknowledgment of climate change and socioeconomic impact on exposure
Notably, OSHA includes climate change as a consideration and estimates that under a “high emissions scenario,” climate change may result in the loss of 2 billion labor hours on an annual basis at an estimated cost of $160 billion in lost wages due to extreme temperatures alone. It also states that as climate change increases extreme heat events, certain groups that are more likely to live in areas affected with the highest projected labor hour losses are individuals who are Hispanic and Latino, American Indian, and Alaska Native. The proposed rule acknowledges that there is inequality in exposures and outcomes for workers exposed to hazardous heat and cites concerns of the effects excessive heat can have on pregnant workers and workers of color.
OSHA has included 114 questions to solicit information related illness, injuries, and fatalities occurring due to hazardous heat. The deadline to submit comments is December 27, 2021. Comments must be identified by Docket No. OSHA-2021-0009 and submitted electronically to the Federal e-Rulemaking Portal.
Congress provides a scary OSHA enforcement update going into the Halloween weekend
On Thursday Oct. 28, 2021, Democrats in the U.S. House of Representatives released a current draft of H.R. 5376, the proposed Build Back Better Act. The workplace safety provisions include increases to the maximum and minimum civil penalties for OSHA violations. If passed:
- the minimum penalty for a willful or repeat violation that is currently set at an (inflation-adjusted) $9,753 value, would rise to $50,000;
- the maximum penalty for a willful or repeat violation that is currently set at an (inflation-adjusted) $136,532 value, would rise to $700,000; and
- the maximum penalty for serious violations and failures-to-correct violations that are both currently set at an inflation-adjusted $13,653 value, would rise to $70,000.
Whether these new penalty amounts are enacted into law remains to be seen. However, if these amounts become law, employers receiving citations in the future may experience a true case of sticker shock and want to contest citations more often than in the past. A similar reaction occurred in the mining industry when the Mine Safety and Health Administration’s penalties rose significantly in 2007. The increased penalties resulted in a significant enforcement litigation backlog.