By Adam R. YoungMark A. Lies, II, A. Scott Hecker, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: OSHA is initiating a rulemaking to develop a heat illness standard.

For decades, federal OSHA has enforced occupational heat illness hazards through the Occupational Safety and Health Act’s General Duty Clause. OSHA has recently updated its Heat Illness Prevention Campaign materials to recognize both indoor and outdoor heat hazards, as well as the importance of protecting new and returning workers from hazardous heat. As OSHA continues to shift its enforcement focus to heat, it has begun the process to issue a heat illness standard. On October 27, 2021, OSHA issued an advance notice of proposed rulemaking (ANPRM) for the proposed standard. The ANPRM provides OSHA’s overview of the issues concerning heat stress in the workplace and of measures that have been taken to prevent it, and seeks input from stakeholders on a number of questions during a designated notice-and-comment period.

According to the Agency, heat is the leading cause of death for all weather-related phenomena. Excessive heat exacerbates existing health problems like asthma, kidney failure, and heart disease, and can cause heat stroke and death if not treated. OSHA cites to the Bureau of Labor Statistics (BLS) Census of Fatal Occupational Injuries, declaring that exposure to excessive environmental heat, that has killed 907 U.S. workers from 1992–2019, with an average of 32 fatalities per year during that period. In 2019, there were 43 work-related deaths due to environmental heat exposure. The BLS Annual Survey of Occupational Injuries and Illnesses estimates that 31,560 work-related heat injuries and illnesses involving days away from work have occurred from 2011–2019, with an average of 3,507 injuries and illnesses of this severity occurring per year during this period.

The ANPRM examines the four state plans with heat illness regulations (California, Minnesota, Oregon, and Washington), clearly showing an intent to model federal regulations on those deemed to be successful. Notably, none of the four pre-existing heat regulations agree on the appropriate threshold for determining what constitutes “hazardous” levels of heat. The ANPRM uniquely targets (1) the effects of climate change on occupational health, and (2) the inequitable effects of heat illness on disadvantaged demographic groups. OSHA provides data addressing disproportionate heat illness affecting minority employees, foreign-born employees, low-wage-earners, and pregnant employees.

OSHA also notes that a large percentage of heat illness incidents occur in very small businesses with 10 or fewer employees. A hurdle OSHA faces in developing a standard is that small businesses will have difficulty implementing both new engineering controls (air conditioning, providing shade) and administrative controls (closely monitoring the heat exposure of employees, cooling breaks because of limited employees, lengthy periods of acclimatizing to heat prior to beginning work).

Public comments on the ANPRM are requested on or before December 27, 2021. A heat illness standard could be the final outcome of this process, and interested parties should consider submitting comments to make sure their voices are heard during this rulemaking.

We have previously blogged on heat stress in the workplace. See “Water. Rest. Shade.” OSHA Campaign to Prevent Heat Illness in Outdoor WorkersCool For the SummerAvoid the Summer Heat! Sweat the Details of California’s “Cool-Down” Periods and Avoid the Burn of Wage and Hour Class Litigation, and Cal/OSHA Drafts Rules for the Marijuana/Cannabis Industry and Heat Illness Prevention in Indoor Places of Employment.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.