By: Samantha C. Corcoran, Esq. and Greg Vanden-Eykel, Esq.
Excessive heat in the workplace can cause serious injury and death to employees. In fact, heat is the leading cause of weather-related deaths in the United States. To date, however, no federal rules, laws, or standards regulate employer obligations to mitigate workplace heat hazards. On August 30, 2024, the Occupational Safety and Health Administration (“OSHA”) addressed this issue when it published its proposed rule (the “Rule”) regarding “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.”
The Rule applies to most employers, regardless of the number of employees, who operate the construction, maritime, and agriculture sectors where OSHA has jurisdiction. Employer obligations pursuant to the Rule are triggered when employees are exposed to temperatures of 80ºF for more than fifteen minutes in any given sixty-minute period.
The Rule is currently in public comment period, which expires on December 30, 2024. After the public comment period, it may take months for the Rule to be finalized and implemented (if at all). However, employers should be aware of these potential obligations because OSHA is signaling its intent to increase worker safety in both indoor and outdoor settings. If this Rule goes into effect, it will significantly impact operations, staffing, and budgeting across practically all industries.
Employer Obligations
The Rule imposes several requirements upon employers. For example, employers with employees operating at outdoor work sites must monitor the outdoor temperature with “sufficient frequency to determine with reasonable accuracy employees’ exposure to heat.” Employers will need to document their monitoring activities and, then must be prepared to take action once the temperature reaches 80ºF. For indoor work sites, employers must identify areas where the heat index could be 80ºF or more and implement a temperature “monitoring plan” in their written heat injury and illness prevention plan (“HIIPP”).
Any employer with more than 10 employees must draft and maintain a written HIPP. The HIPP shall include (1) a comprehensive list of the types of work activities covered by the HIIPP; (2) a description of how the employer complies with the OSHA standard; (3) the means the employer will use to monitor temperatures; (4) emergency phone numbers and procedures employees must follow when an employee experiences signs and symptoms of a heat-related illness and; (5) a list of heat safety coordinators who have authority to ensure compliance with all aspects of the HIIPP.
Responding to Heat Hazards and Temperature Triggers
Where a worksite temperature reaches 80ºF or above, employers must:
- ensure workers have readily accessible, cool drinking water (at least 1 quart per hour);
- allow paid rest breaks if needed;
- provide one or more readily accessible break area with shade or provide air-conditioning like a trailer, vehicle or structure (for outdoor work sites);
- provide one or more readily accessible break areas with air-conditioning or increased air movement and, if appropriate, de-humidification (for indoor sites);
- implement an acclimatization plan for the first week of work for new and returning employees; and
- communicate regularly with employees.
Employer obligations increase once the temperature reaches 90ºF. When this occurs, employers must:
- provide paid rest breaks – a minimum of 15 minutes every two hours (a meal break – whether paid or unpaid – may also serve as a rest break);
- set up an observation system to check employees for the signs and symptoms of heat-related illnesses;
- maintain effective two-way communication with employees who are alone at a work site at least every 2 hours; and
- provide a heat hazard alert to employees on the importance of drinking water, taking rest breaks and following lifesaving emergency procedures.
What Is an Acclimatization Plan?
The Rule addresses research and historical data that shows that a significant number of heat-related injuries occur when employees first encounter extreme heat. Therefore, under the Rule, employers must develop and implement Acclimatization Plans:
- For newly hired or newly assigned employees or for those who have not worked in extreme heat during the prior 14 days: only 20% of their first day of work should be in extreme heat. Employers can then increase their exposure by 20% each subsequent day until a normal schedule is reached.
- For employees returning after a leave from exposure to extreme heat of less than 14 days: only 50% of their first day of work should be in extreme heat. Employers can then increase their exposure by 10% on the second day, 30% on the third day, and then they can work their full schedule as of the 4th day of return.
As a result of these requirements, employers will need to plan their worksite staffing plans in advance to account for the acclimatization process.
Next Steps
The Rule will particularly affect contractors and subcontractors who perform a majority of their work in higher temperature conditions – both indoors and outdoors. As temperatures continue to increase in New England, employees will experience more days of work in extreme heat, and employers must be prepared. If the Rule goes into effect, employers who fail to comply will be subject to civil liability as well as fines and penalties from OSHA. Employers must keep in mind that OSHA issues penalties for each violation, and in this case, employers may face large fines because each employee impacted by a failure to comply with the Rule will constitute one violation.
Contractors and subcontractors should use this time to evaluate their existing plans to determine whether they currently comply with OSHA’s heat injury and illness prevention standard. They should also develop training protocols for supervisors, heat safety coordinators, and employees (generally) to increase awareness of the risks and policies related to work in these conditions. Planning now may save time and resources and mitigate risk if and when the Rule becomes final.
Employers with questions should consult with a Kenney & Sams employment attorney.
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