OSHA Announces a National Emphasis Program to Protect Workers from Heat Hazards

Written By: Daniel Richardson

On October 27, 2021, OSHA published in the Federal Register an Advance Notice of Proposed Rulemaking (ANPRM) on the issue of Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings. According to this Notice, heat is the leading cause of death among all weather-related phenomena. “Excessive heat exacerbates existing health problems like asthma, kidney failure, and heart disease, and can cause heat stroke and even death if not treated properly and promptly.” According to the Bureau of Labor Statistics, exposure to excessive environmental heat stress has killed 907 US workers from 1992 to 2019, with 43 such deaths in 2019. According to the Notice, it is very likely that these statistics are low and that heat-related illnesses are significantly underreported. The Biden Administration is concerned that the trajectory of heat-related illnesses and deaths may be upward due to climate change and higher average temperatures.

In publishing the ANPRM, OSHA solicited feedback on occupational illnesses, injuries, and fatalities due to hazardous heat; structure of work and work arrangements affected by hazardous heat; determinants of hazardous occupational heat exposure; inequalities in exposures and outcomes among low-wage earners and workers of color; existing efforts on heat illness prevention by states, employers, and others; costs, benefits, and economic impacts; and the impact of climate change. OSHA also sought comments on various strategies to reduce occupational heat-related injury and illness.

So far there has been no specific standard governing hazardous heat conditions at workplaces. That does not mean that OSHA has not attempted to cite employers for unsafe working conditions related to heat. It means that they have attempted to do so through the General Duty Clause under Section 5(a)(1), which states that “employers have a general duty to furnish to each of their employees employment and a place of employment free from recognized hazards that cause or are likely to cause death or serious physical harm to employees.” Employers generally have greater success when attempting to contest citations under the General Duty Clause because OSHA faces a higher bar than if they are citing under a more specific standard.

To prove a violation of the General Duty Clause, OSHA needs to establish that (1) the employer failed to keep the workplace free of a hazard to which its employees were exposed; (2) the hazard was recognized; (3) the hazard was causing or likely to cause death or serious injury; and (4) a feasible means to eliminate or materially reduce the hazard existed. The General Duty Clause does not specifically prescribe hazardous heat exposure thresholds or provide specifics on how employers are to eliminate or reduce their employees’ exposure to hazardous heat. OSHA admits that citations under the General Duty Clause have been met with significant legal challenges. For example, in 2020, an OSHA Review Commission judge overturned five heat-hazard citations against the US Postal Service, holding that the agency could not rely on a National Weather Service guide to determine heat severity.

On April 12, 2022, OSHA launched a National Emphasis Program (NEP) related to heat hazards. According to their news release, “OSHA will proactively initiate inspections in over 70 high-risk industries in indoor and outdoor work settings when the National Weather Service has issued a heat warning or advisory for a local area. On days when the heat index is 80 F or higher, OSHA inspectors and compliance assistance specialists will engage in proactive outreach and technical assistance to help stakeholders keep workers safe on the job. Inspectors will look for and address heat hazards during inspections, regardless of whether the industry is targeted in the NEP.” This NEP is now underway and will remain in effect for three years.

We do not yet have the final heat standard, but it will likely be arriving soon. All employers will need to take note, but especially those in the construction industry. Employers should also remember that, even if a compliance officer visits your workplace because of this current emphasis on heat hazards, they are not limited in what violations they may identify and cite. If you are in a state with an OSHA-approved state plan, you should consider whether your state has adopted its own standard. As of October 2021, four states (California, Minnesota, Oregon, and Washington) had promulgated hazardous heat standards, and whenever OSHA eventually promulgates a standard, the remaining state plans will be required to ensure that their efforts are at least as effective as OSHA’s at protecting workers from heat. Thus, we will see some additional state standards which at least have the potential to be more stringent than whatever OSHA sets forward.

Though we do not yet have the final heat standard, OSHA has published some non-binding guidance: “Working in Outdoor and Indoor Heat Environments.” According to the guidance, workers will need time to build up a tolerance to heat if they are unused to working in warmer conditions, and especially during those first few days, workers should be encouraged to consume adequate fluids, work shorter shifts, take frequent breaks, and quickly identify any heat illness symptoms. OSHA recommends “water, rest, and shade” for prevention as well as treatment for heat-related illness. Factors which contribute to heat exposure are physical activity, air temperature, humidity, sunlight, heat sources, air movement, clothing, and individual risk factors such as a preexisting health condition. The most accurate way to measure environmental heat impact on body temperature is through an on-site wet bulb globe temperature (WGBT) meter, but for a simpler heat index, there is a NIOSH/OSHA Heat App that can be downloaded to your phone.

Employers should review the above guidance that OSHA has provided to ensure that they are being proactive to prevent heat-related illness and possibly death. We anticipate that until a final heat standard passes into law, and during this National Emphasis Program, OSHA will continue using the General Duty Clause as a basis for citations. If you are being inspected, you are entitled to have an attorney present throughout the inspection, and if you have been issued a citation, before paying it you should consider consulting an attorney to determine whether you have a good basis to contest some or all of the alleged violations. If you have any questions or need assistance, please feel free to contact me.