OSHA Is Not Backing Down

Even if you did not directly experience last summer’s heat, you probably read or heard about it. Historically high temperatures scorched the country from coast to coast, and there are no signs that this heat will abate anytime soon. According to the Bureau of Labor Statistics, 436 people have died due to workplace heat exposure since 2011. In the same time period, there were an additional 2,700 cases of heat-related illnesses among workers. Now — quite literally more than ever — it is critical for employers to take steps to ensure their workers are protected from extreme heat. 

The Occupational Safety and Health Administration (OSHA) does not provide a standard specific to this issue. However, OSHA’s General Duty Clause requires all employers to provide a safe workplace for employees, and OSHA believes protecting employees against heat hazards falls under that duty. It recently emphasized the importance of employers taking steps to reduce the risks that extreme heat poses to employees. OSHA has initiated a National Emphasis Program (NEP) on heat, which intensifies its efforts to address heat-related occupational hazards. The program particularly homes in on at-risk geographic areas and industries, including construction and agriculture. 

Last year’s extreme heat even prompted action from the White House. On July 27, 2023, President Joe Biden issued a statement noting that the U.S. Department of Labor will continue ramping up its crackdown on heat-related safety violations, including increasing inspections — both programmed and unprogrammed — in the high-risk industries mentioned above. Biden also specifically asked the DOL to issue its first-ever Hazard Alert for extreme heat. OSHA thereafter released this alert, which reminds employers of their “legal and moral responsibility” not to assign work in hot conditions without adequate protection for workers. The alert lists the following guidance to employers:

• Provide adequate water, rest breaks and shade or a cool rest area for employees.
• Give new or returning employees the chance to gradually acclimate to working in hot temperatures, train and plan for emergencies, and monitor for heat signs and symptoms.
• Train employees on heat illness prevention, signs of heat illness and how to act immediately if they or another employee appears to be suffering from a heat-related illness.

These measures should be a floor, not a ceiling, for employers. Indeed, OSHA continues to deliberate both internally and with private employers about the least burdensome and most feasible ways for businesses to address heat-related risks in compliance with OSHA’s burgeoning guidance and rules. On Aug. 24, 2023, OSHA issued a document containing many potential options for inclusion in a proposed heat illness-related rule. This document, which was made available to the public for feedback, gives employers a good sense of the areas that OSHA is likely to focus on in future rulemaking. For example, the document specifies the following options are being considered:

OSHA may require employers to develop a “Heat Injury and Illness Prevention Program.” This program should specify an employer’s procedures for identifying heat-related risks for employees and for recognizing signs of heat-related illnesses. The program should also provide procedures for implementing engineering and administrative controls (e.g., water breaks, shade breaks) when there is potential for high heat, and should contain procedures for assisting employees exhibiting symptoms of high-heat exposure. Finally, the program should ensure training of all employees and supervisors on heat risks and procedures for dealing with such risks and should identify an individual employee with responsibility for ensuring adequate oversight, supervision and enforcement of the employer’s program.

OSHA may require employers to monitor whether heat hazards exist for their employees. For outdoor employees, this could require employers to track weather forecasts and keep tabs on the heat index, ambient temperature and humidity at jobsites. For indoor employees, employers could be required to assess which areas might pose heat-related hazards and to update this assessment whenever a change in equipment, production, etc., has the potential to increase heat levels in the area.

• OSHA may require employers to implement engineering controls to mitigate the effects of heat-related hazards. For outdoor employees, this could mean a cool-down area, which might include shade (whether provided by natural or artificial sources), ventilation, fans or misting machines, an air-conditioned area or all the aforementioned options. For indoor employees, OSHA could require a cool-down area, increased ventilation, and/or air movement devices in work areas or, when fixed, heat-generating sources are present, the application of barriers, exhaust systems, etc., that minimize the effects these devices might have on nearby workers.
• Similarly, OSHA might require employers to implement administrative controls to minimize the effects of high-heat exposure. These could include the provision of drinking water to employees, procedures to ensure employees are properly acclimated to high-heat conditions (such as heat-hazard awareness training and designing work schedules that gradually introduce new and returning employees to high-heat work environments), the provision of rest breaks in a cool or shaded area, ensuring adequate supervision of employees to identify signs and symptoms of illnesses, and the provision of personal protective equipment to employees that would reduce heat-related risks.
• Finally, OSHA may require employers to create and implement medical treatment and emergency response procedures to assist employees affected by extreme heat. These procedures might include a step-by-step process for dealing with heat-affected employees, designating an employee to be in charge of responding to medical issues and emergencies, specifying how communication is to be maintained between worksites and those employees responsible for contacting emergency aid, and ensuring precise directions to the worksite are available if emergency responders are required on-site.

This is simply a sampling and by no means an exhaustive list of measures OSHA is considering to address the risks associated with extreme heat. Employers should be mindful of these potential impending measures and begin considering how they can adjust their processes to comply with OSHA’s directives. If you are concerned about the adequacy of your company’s heat-related illness prevention program, you should consult an attorney with experience in drafting OSHA-compliant policies.