In late October 2021, OSHA published an Advance Notice of Proposed Rule making for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings. While OSHA does not have a specific standard for hazardous heat conditions in place, it recognized that it intends, with this action, to consider a heat-specific workplace rule.
During the announcement, U.S. Department of Labor Secretary Marty Walsh explained, “As we continue to see temperatures rise and records broken, our changing climate affects millions of America’s workers who are exposed to tough and potentially dangerous heat. We must act now to address the impacts of extreme heat and to prevent workers from suffering the agony of heat illness or death.”
While OSHA’s official rule is still in development, it encourages companies across all industries to follow its current guidance regarding how to prevent heat illness and death on their jobsites–i.e., rest, water, and shade. However, in early April of this year, OSHA did initiate a national emphasis program(NEP)intended to protect employees from heat-related hazards and injuries.
Under the NEP, contractors that have heat illness incidents will continue to be liable under the agency’s general duty clause–section 5(a)(1) of the OSHAAct of 1970–which states that places of employment must be “free from recognized hazards that are causing or are likely to cause death or serious physical harm to its employees.”
The clause is often used in cases concerning combustible dust, struck-bys, workplace violence, ergonomics issues, or infectious diseases.But, according to recent statements from Howard Mavity, partner at Fisher & Phillips, and James Sullivan Jr., co-chair of OSHA-workplace safety practice Cozen O’Connor, OSHA inspectors can use the clause to cite construction employers across multiple categories where other, prescriptive, outlined standards don’t apply.
Recent data from the Center for Construction Research and Training shows that construction workers accounted for more than 36 percent of all occupational, heat-related deaths between 1992 and 2016, while only representing around six percent of the workforce.
In this case, employees should know their own limits and feel empowered to ask for a break or other accommodations. But employers should also take the time to train employees on the early signs of heat exhaustion, take the proper precautions, and employ manageable tips like:
Ultimately, while OSHA lacks a heat standard for the time being, it will fall back on the 5(a)(1) clause for heat-related incidents. It’s important to remember, however, that the clause doesn’t always apply. While employers may see 5(a)(1) and think they have a defense –any employer that fails to recognize hazards or evidence of an incident can undermine that defense. And thus, OSHA can use the general duty clause, as intended, to cite employers who failed to act to stop a recognizable hazard.
Looking ahead, sources suggest that OSHA’s federal standard will help guide contractors in devising and implementing their own heat illness prevention plans. Until then, the agency is in the process of analyzing feedback it gathered over the last several months and is identifying gaps in current information, such as guidance about drinking caffeine and energy drinks in heat, to inform the rule making.