By: Adam R. Young, Patrick D. Joyce, James L. Curtis, Mark A. Lies, II, and Craig B. Simonsen

Seyfarth Synopsis: The federal Occupational Safety and Health Administration has launched a National Emphasis Program to protect “millions of workers from heat illness and injuries. Through the program, OSHA will conduct heat-related workplace inspections before workers suffer completely preventable injuries, illnesses or, even worse, fatalities.”

Heat illness at the workplace has been growing as a target issue for federal OSHA for several years. Under the Biden Administration, a shift in federal OSHA’s focus to vulnerable worker populations and the effects of climate change has further highlighted occupational heat illness as a primary enforcement focus. As we previously blogged, the Agency is developing a heat illness standard applicable to General Industry and Construction, which the Agency anticipates will take months, if not years, to finalize. In the interim, OSHA continues to aggressively enforce indoor and outdoor heat illness hazards through the OSH Act’s General Duty Clause. On April 8, 2022 OSHA released a National Emphasis Program – Outdoor and Indoor Heat-Related Hazards, which provides the Agency’s policies and procedures with respect to targeted enforcement of heat hazards.

On April 12, 2022, Secretary Marty Walsh joined Vice President Kamala Harris in Philadelphia to announce a new enforcement program related to indoor and outdoor heat illness which, according to OSHA, affects thousands of indoor and outdoor workers each year. According to Walsh, reducing workplace heat-related illnesses and injuries is a “top priority for the Department of Labor, and this National Emphasis Program is a way to immediately improve enforcement and compliance efforts, while continuing long-term work to establish a heat illness prevention rule.”

Heat stress occurs when the human body is no longer able to control its internal temperature. Heat stress may lead to heat exhaustion and heat stroke. Symptoms of heat exhaustion include dizziness, headache, rapid pulse, nausea, and vomiting. The symptoms of heat stroke include high body temperature, confusion, and convulsions. Heat stroke can be fatal.

Heat stress may be avoided when working in a hot environment by drinking cool water frequently (whether thirsty or not), resting in the shade when cool down is needed, and by wearing a hat and light-colored clothing.

The National Emphasis Program (NEP) targets employers in certain “high hazard” heat illness industries based on NAICS code, including many outdoor services industries, indoor manufacturing environments, warehousing, and nursing care facilities. Using the enforcement guidance provided in the NEP, OSHA compliance officers will be expected to review certain key facets of an employer’s heat illness program to determine whether there may be a violation of OSHA’s General Duty Clause —

  • Is there a written program?
  • How did the employer monitor ambient temperature(s) and levels of work exertion at the worksite?
  • Was there unlimited cool water that was easily accessible to the employees?
  • Did the employer require additional breaks for hydration?
  • Were there scheduled rest breaks?
  • Was there access to a shaded area?
  • Did the employer provide time for acclimatization of new and returning workers?
  • Was a “buddy” system in place on hot days?
  • Were administrative controls used (earlier start times, and employee/job rotation) to limit heat exposures?
  • Did the employer provide training on heat illness signs in a language they understand, how to report signs and symptoms, first aid, how to contact emergency personnel, prevention, and the importance of hydration?

Employers would be wise to review this list, analyze their jobs for outdoor and indoor heat illness hazards, and develop a program to protect employees and address heat hazards.

The NEP also instructs compliance officers to interview workers on-site for subjective symptoms of heat illness such as headache, dizziness, fainting, or dehydration and to conduct personal observations looking for signs of heat illness at the jobsite. The NEP instructs compliance officers to conduct subjective observations of an employee’s “workload,” which, combined with the NEP’s heat index “trigger” of 80ºF, provides information as to the likelihood of employee exposure to the “hazard” of high ambient heat.

The NEP still leaves many unanswered questions as to what enforcement position OSHA will take when evaluating employer heat illness programs:

  • How should employers analyze and quantify different heat hazards posed by exposure to sunlight (solar radiation) and hard physical labor (metabolic heat)?
  • What is the proper schedule for rest breaks and how is that affected by work being outdoors or indoors?
  • What is the proper acclimatization schedule and how is OSHA/NIOSH’s proposed acclimatization affected by non-standard shift schedules (i.e., on for 10 days, off for 10 days), worker vacations, or even long holiday weekends?
  • Is access to cool water sufficient or will OSHA expect employers to provide access to electrolyte replacement beverages, tablets, or powders?
  • Will OSHA expect employers to provide employees with access to air conditioned or artificially cooled buildings or vehicles?
  • How should employers address hazards faced by high risk employees, given the medical inquiries that are prohibited by the Americans with Disabilities Act (ADA)?
  • What training will be provided to compliance officers to be able to determine the proper “workload” for each particular employee and job task?
  • On a multi-employer worksite, is the controlling employer required to confirm that its subcontractors have a heat illness prevention plan or that temporary workers have received the heat illness training from their staffing company? If so, what level of confirmation or follow up is necessary?

Several states have regulations or proposed regulations relating to heat illness or workplace temperature: California, Colorado, Maryland, Minnesota, Nevada, Oregon, and Washington. In Oregon, the Agency recently adopted Proposed Rules to Address Employee and Labor Housing Occupant Exposure to High Ambient Temperatures and Proposed Rules to Address Employee Exposure to Wildfire Smoke.

At federal OSHA there is also a Heat Illness Prevention campaign, launched in 2011, which educates employers and workers on the dangers of working in the heat. Through training sessions, outreach events, informational sessions, publications, social media messaging and media appearances, workers and employers learn how to protect workers from heat. Its safety message comes down to three key words: Water. Rest. Shade.

We have previously blogged on heat stress in the workplace. See OSHA Begins the Process to Issue Heat Illness Standard for Indoor and Outdoor Workplaces, “Water. Rest. Shade.” OSHA Campaign to Prevent Heat Illness in Outdoor Workers, Cool For the Summer, Avoid 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 author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.