The Occupational Safety and Health Administration ("OSHA") has proposed a new rule, detailing measures employers would have to implement to protect both indoor and outdoor workers from the risk of heat illness if finalized. This marks the first significant federal regulation focused on preventing heat-related fatalities in the workplace. The rule will be published in the Federal Register, and the public will have 120 days to submit written comments.
Requirements
OSHA's proposed regulation extends to almost all employers with 10 or more employees, covering general industry, construction, maritime, and agriculture sectors. The regulation would oblige employers to establish a Heat Injury and Illness Prevention Plan (HIIPP) tailored to their specific worksites to detect, monitor, and mitigate heat-related hazards.
Heat Triggers
The requirements would be activated when employees are exposed to heat indexes of 80ºF—referred to as the "Initial Heat Trigger"—for over fifteen minutes within any hour. If the "Initial Heat Trigger" is met, employers would have to perform the following:
- Provide easy access to clean drinking water, at a suitably cool temperature, and in quantities of 1 quart per employee per hour;
- Require worker access to shaded and/or indoor rest areas;
- Allow paid rest breaks in area(s) with artificial shade, natural shade, or air conditioning;
- Implement acclimatization plans for new and returning employees during their first week of work;
- Maintain effective and regular two-way communication with employees;
- Ensure personal protective equipment, if provided by employer, is maintained at all times during use; and
- For indoor work areas, employers must implement either increase air movement, air-conditioning, or other measures to effectively reduce employee exposure.
At the "high heat trigger," which is identified as a heat index of 90ºF under the proposed rule, employers would further be required to do the following:
- Allow a 15-minute paid breaks every two hours in designated break areas with artificial shade, natural shade, or air conditioning;
- Implement a mandatory buddy system or observation by supervisor or heat safety coordinator for observing employees for signs and symptoms of heat illness; and
- Provide a "hazard alert" issued by the employer reminding employees to drink water and take breaks.
HIIPP Monitoring Plan
In addition to the above control measures, HIIPP requirements would include the following:
- A "comprehensive list of the types of work activities cover by the [HIIPP]";
- All policies and procedures necessary to comply with the standard;
- Identifying a heat metric to be used for determining the heat thresholds;
- Designation of one or more heat safety coordinators who would be responsible for implementing and monitoring the HIIPP;
- A heat illness emergency plan response, including emergency contact information and procedures for responding to an employee experiencing signs and symptoms of a heat-related illness or a heat emergency;
- If employees wear vapor-impermeable clothing in the work area, the employer would have to assess the associated heat stress hazards resulting from this clothing and implement policies and procedures in the HIIPP based on reputable sources to protect employees while wearing this clothing; and
- For affected indoor work areas, a heat monitoring plan;
Employers would also be responsible for tracking temperatures to determine when a heat trigger is reached. Due to temperature changes throughout a work shift, employers would need to monitor temperatures closely to know when to implement the HIIPP.
The HIIPP must be easily accessible to all employees in the affected work areas and provided in languages that are understood by all employees, supervisors, and heat safety coordinators.
Additional Requirements for Employers
Training: The proposed standard requires that employees, supervisors, and designated heat safety coordinators receive initial training as well as annual refresher training. Employers must also offer additional training whenever there are changes that impact heat exposure, updates to policies and procedures, or following any heat-related injury or illness. All training must be conducted in a language and at a literacy level that is comprehensible to all employees, supervisors, and heat safety coordinators. Additionally, employees should be provided the opportunity to ask questions and receive answers regarding the training materials.
Employee Involvement: Employers are required to seek input and involvement of non-managerial employees and their representatives, if any, in the development and implementation of the HIIPP;
Review: Employers must review and evaluate the effectiveness of their HIIPP on an annual basis and any time a heat-related illness or injury occurs that results in death, days away from work, or medical treatment beyond first aid.
Recordkeeping: If the employer conducts on-site measurements at indoor work areas, they must have written or electronic records of those indoor work area measurements and retain them for six (6) months.
What Happens Next?
The final rule will soon be published in the Federal Register and go through a comment period, and whether the proposed rule will become final is dependent on, among other things, the results of the upcoming election. The rule will also face challenges in the courts. Employers should continue to monitor this area to be prepared for the implementation of the rule, if finalized. We will continue to monitor developments in this space, and Honigman's Labor and Employment attorneys are available for any questions.
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