By Brent I. Clark, James L. Curtis, Mark A. Lies, II, Adam R. Young, Patrick D. Joyce, Ilana R. Morady, Daniel R. Birnbaum, and Craig B. Simonsen
Seyfarth Synopsis:OSHA recently announced a three-pronged approach to establish a heat illness enforcement initiative, pertaining to both indoor or outdoor work settings: an enforcement memorandum, a National Emphasis Program, and drafting of a heat illness prevention permanent standard.
Federal OSHA and most states address heat illness hazards through the OSH Act’s General Duty Clause or state equivalent, which requires employers to provide a workplace free from recognized serious hazards. With respect to heat illness, employers must have sufficient means of abatement in place to address a recognized heat hazards where the temperature and work conditions actually constitute a hazard. Essentially, this means employers whose employees are exposed to recognized heat illness hazards (indoor or outdoor) need to have a plan and effective mitigation measures in place, or face potential OSHA citations.
Due to a tight labor market, many employers are bringing in new or returning workers who are not used to working in the heat. Because of COVID-19, many of these individuals are also required to wear face masks while working, which can exacerbate heat exposures. New and returning workers, who are not used physical stresses of the job, face the greatest risks of heat illness. As with any physical activity, workers build a tolerance to working in the heat over time.
On September 20, 2021, OSHA issued an updated heat illness enforcement initiative to guide the agency’s enforcement of heat illness inspections and to inform employers what is expected of them from a heat illness prevention standpoint. The initiative prioritizes inspections of work activities on days when the heat index exceeds 80℉, and will target specific industries, including, in a change to prior focus on outdoor work, industries that may be primarily indoors or in shaded work environments. Many of these expectations appear to be modeled after Cal/OSHA’s heat illness standard.
Targeted industries include Commercial Construction, Landscaping, Manufacturing, Waste Management, Transportation, and Warehousing. OSHA’s proposed alleged violation description for heat illness citations is telling and clearly contemplates indoor heat exposure, as it includes other sources of heat such as boilers, furnaces, and engines. Accordingly, we anticipate that OSHA will increasingly target indoor workplaces with these inspections. As employers focus on re-opening efforts, employers should remain aware of risks of safety rule violations, injuries, and heat illness.
Also announced in OSHA’s press release, but not yet published, are a planned National Emphasis Program (NEP), based upon a heat illness Local Emphasis Program (LEP) in OSHA Region 6, as well as a plan to start the official rulemaking process on a federal heat illness prevention permanent standard. A permanent standard has been discussed by many prior OSHA administrations, but has not yet reached the rulemaking stage. OSHA’s reference to the Region 6 LEP provides some insight into what may be contained in a federal NEP.
We have previously blogged on heat stress in the workplace. See Heat Illness and Back to Work — Summer 2021, “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 authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.