On July 2, 2024, the Occupational Safety and Health Administration (OSHA) released the text of its highly anticipated proposed standard that, if finalized, would create the first federal standard aimed at protecting workers from exposure to heat hazards in the workplace, whether indoors or outdoors.  The proposed standard, titled Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings, applies to nearly all employers and is expected to be published in the Federal Register in the coming days.

Key Requirements of Proposed Standard

The proposed standard covers nearly all employers¹ regulated by OSHA, including those in general industry, construction, maritime, and agriculture sectors.  The proposed standard requires employers to develop a Heat Injury and Illness Prevention Plan (HIIPP) with site-specific information to identify, monitor, and control heat hazards in their workplace.  As part of the HIIPP, the proposed standard also requires employers to develop a heat emergency response plan.  Additional key requirements include:

Heat Triggers

The proposed standard requires employers to implement specific control measures if the temperature reaches an Initial Heat Trigger (a heat index of 80°F) with additional controls required when the temperature reaches a High Heat Trigger (a heat index of 90°F). 

If the Initial Heat Trigger is met, employers must provide employees with the following:

• Drinking water that is suitably cool, in readily accessible locations, and of a sufficient quantity (one quart of water per employee per hour);
• Paid rest breaks in area(s) with cooling measures that can be taken as needed;
• Indoor work area controls (such as air conditioning or fans);
• Acclimatization protocols for new and returning employees during their first week of work;
• Effective and regular two-way communication; and
• If provided by the employer, personal protective equipment (PPE) with cooling PPE that is maintained at all times during use.

If the High Heat Trigger is met, employees must be provided with the controls required for the Initial Heat Trigger along with the following:

• Mandatory, paid 15-minute rest breaks every two hours in break area(s) with cooling measures;
• A system for observing employees for signs and symptoms of heat-related illness, such as a buddy system involving co-workers; and
• A hazard alert reminding employees to drink water and take breaks, among other things.

In addition to identifying heat triggers, the proposed standard provides specific guidance in how employers should identify heat hazards indoors and outdoors and corrective measures. The proposed standard requires employers to seek input and involvement of non-managerial employees and their representatives when evaluating the worksite to identify work areas where there is a reasonable expectation of exposures at or above the initial heat trigger and also in developing and updating monitoring plans for each work area to determine when employees are exposed to heat at or above the initial or high heat triggers.

HIIPP Requirements The HIIPP must be in writing if the employer has more than 10 employees.  The HIIPP must include the following elements:

• An identified heat safety coordinator that has authority to ensure compliance with the HIIPP;
• A comprehensive list of the types of work activities covered under the plan;
• All policies and procedures that are adopted by the employer to comply with the requirements of the standard;
• An identification of which heat metric the employer will monitor to comply with the standard;
• Procedures on how to obtain input and involvement of non-managerial employees and their representatives in the development and implementation of the HIIPP and any other time there are any changes to or reviews of the HIIPP;
• Procedures on how the employer will review and evaluate the effectiveness of the HIIPP on an annual basis or as necessary; and
• The plan must contain emergency contact information along with procedures for responding to an employee experiencing signs and symptoms of a heat-related illness or a heat emergency.

The plan also has specific requirements for employees who wear vapor-impermeable clothing, requirements that it must be available at the worksite to all employees performing work at the work site, and the requirement that it be available in a language each employee, supervisor, and heat safety coordinator understands.

As part of the HIIPP, the proposed standard requires employers to implement a heat emergency response plan that includes:

• Listing emergency phone numbers;
• Describing how employees can contact a supervisor and emergency medical services;
• Designating individuals to ensure heat emergency procedures are involved when appropriate;
• Describing procedures on how employees can be transported to a place where an emergency medical provider can reach them;
• Providing clear and precise directions to the worksite, including the address; and
• Implementing procedures to respond when an employee is experiencing signs and symptoms of heat-related illness including suspected heat stroke.

The proposal also requires employers to implement additional procedures when an employee is experiencing signs and symptoms of heat-related illness, including relieving them from duty, monitoring, ensuring they are not left alone, offering on-site first aid or medical services, and providing them with ways to reduce their body temperature, among others.

Training

Under the proposed standard, employees, supervisors, and a designated heat safety coordinator(s) must be provided with initial and annual refresher training.  Employers must also provide supplemental training whenever changes occur that affect exposure to heat hazards, revisions to policies and procedures are made, or after the occurrence of a heat injury or illness. 

All training required by the proposed standard must be provided in a language and at a literacy level each employee, supervisor, and heat safety coordinator understands, and employees must be given an opportunity for questions and answers about the training materials.

Recordkeeping

For employers with indoor worksites, the proposed standard requires that the indoor temperature monitoring data be maintained for a minimum of six months.  These records can be maintained in written or electronic form.

During the rulemaking process, numerous businesses and industry groups raised significant concerns highlighting that overly prescriptive requirements in any proposed heat standard would be infeasible for employers.  For example, business groups urged OSHA to allow flexibility for small businesses. Stakeholders also urged the Agency to not require a dedicated heat safety coordinator. It appears many of these concerns are still valid given the text of the proposed standard. 

Further, it is clear from the proposed text that OSHA has incorporated components from several different regulations adopted by California, widely considered one of the strictest OSHA-State Plan jurisdictions.  These include emergency response requirements from Cal/OSHA’s heat standard, requirements for employee involvement and participation in developing the plan, which were lifted from a recently adopted workplace violence prevention statute, and other requirements mirroring those found in California’s Injury and Illness Prevention Program.  By incorporating different components from California statutes and regulations into its proposed heat standard, OSHA has further burdened employers with stringent compliance obligations previously unseen in other OSHA regulations.

Based on recent rulings from the U.S. Supreme Court, including a decision overruling Chevron, USA v. Natural Resources Defense Council (involving agency deference), the Agency’s ability to write such a sweeping rule affecting millions of workers in the United States raises questions on whether the scope of the proposed regulation is reasonable.  Also questionable is the extent to which OSHA dismissed important issues raised during the initial public comment periods and those submitted during, and following, the Small Business Advocacy Review Panel meetings.

Next Steps

Once the proposed standard is published in the Federal Register, those who are interested will have 120 days to submit comments.  Comments and attachments may be submitted electronically at www.regulations.gov, Docket No. OSHA-2021-0009.  Should you have any questions or concerns about OSHA’s proposed heat standard, please contact your employment counsel.  Littler will continue to report on any significant developments related to this proposed standard.