Proposed OSHA Rule Focuses on Heat Triggers, Acclimatization Protocols

Workers need protection from the heat both outdoors and indoors, and the Occupational Safety and Health Administration (OSHA) has announced a proposed rule outlining how to protect them. While some proposed requirements are clear, questions remain for HR professionals about how some of the proposal’s provisions, such as its acclimatization protocols, will be implemented.

The proposed rule “is consistent with what employers have been doing,” said Bill Principe, an attorney with Constangy, Brooks, Smith & Prophete in Atlanta. He said the main provision of the proposal that may be new to employers is its specific acclimatization provisions for new employees and employees who have been away from work for more than 14 days.

The rule also includes requirements at an initial heat trigger (heat index of at least 80 degrees Fahrenheit) and high heat trigger (heat index of at least 90 degrees Fahrenheit).

Employers must develop and implement a written heat injury and illness prevention plan (HIIPP) if they have more than 10 employees, said Ashley Meredith Strittmatter, an attorney with Baker Donelson in Knoxville, Tenn.

“Employers must review and evaluate the effectiveness of their HIIPP at least annually or whenever a heat-related illness or injury results in death, days away from work, medical treatment beyond first aid, or loss of consciousness,” she said.

OSHA is proposing to exclude from the rule short-duration employee exposures to heat, emergency response activities, indoor sedentary work activities, and worksites where the temperature is kept below 80 degrees Fahrenheit, said Heather MacDougall, an attorney with Morgan Lewis in Miami and Washington, D.C.

Initial Heat Trigger

Under the proposal, employers are to implement control measures at or above the initial heat trigger that include providing employees with:

• Cool drinking water.
• Cool break areas.
• Paid rest breaks if needed to prevent overheating.
• Acclimatization protocols (for new and returning employees).

High Heat Trigger

Employers are to implement additional measures at or above the high heat trigger that include providing employees with:

• Mandatory rest breaks of 15 minutes at least every two hours. Unpaid meal breaks may count as a rest break.
• Observation for signs and symptoms of heat-related illness.
• A hazard alert to remind employees of key parts of the employer’s HIIPP.

Acclimatization Protocols

Under the proposed rule, the employer must implement one of the following acclimatization protocols for each new employee during their first week on the job: 1) a plan that incorporates the proposal’s requirements for the high heat trigger whenever the heat index is at or above the initial heat trigger during the employee’s first week of work, or 2) gradual acclimatization to heat in which the employee’s exposure to heat is restricted to no more than 20% of a normal work shift exposure duration in the first day of work, 40% on the second day of work, 60% on the third day of work, and 80% on the fourth day of work.

For returning employees, the employer must implement one of the acclimatization protocols for each employee who has been away for more than 14 days during their first week back on the job: 1) a plan that incorporates the proposal’s requirements for the high heat trigger whenever the heat index is at or above the initial heat trigger during the employee’s first week upon returning to work, or 2) gradual acclimatization to heat in which employee exposure to heat is restricted to no more than 50% of a normal work shift exposure duration on the first day of work, 60% on the second day of work, and 80% on the third day of work.

Employers may push back on these acclimatization protocols, Principe said, and they could make it harder to rely on staffing agencies to provide temporary workers.

The ramp-up system “will be very difficult to administer, particularly for outdoor construction and similar crews who are performing a variety of jobs at different locations,” said Melissa Bailey, an attorney with Ogletree Deakins in Washington, D.C.

“What happens if it is 82 degrees Fahrenheit on day one but only 75 degrees Fahrenheit on day two?” she asked. “Does the process have to begin all over again?”

Rather than following that type of system, an employer may choose to follow the provisions required for high-heat work for new and returning employees working at the initial heat trigger of 80 degrees Fahrenheit, she said.

Bailey said she expected that some stationary worksites, such as manufacturing facilities and warehouses, may choose the ramp-up option, but most employers with outdoor workers will opt for following the high-heat trigger protocols to acclimatize workers.

‘Vague Terms’

“The proposal contains many vague terms, and there are clearly issues OSHA has not considered,” Bailey added.

For example, the proposal provides that meal breaks count as rest breaks. “What about time the employee spends driving to another worksite or delivering products in an air-conditioned vehicle or standing in a shaded area doing a job briefing or pre-job hazard analysis?” she asked. “Also, what about predetermined break times already included in a collective bargaining agreement?”

The acclimatization protocol will be burdensome to many employers, particularly small businesses, said John Ho, an attorney with Cozen O’Connor in New York City.

Best Practices

Ho said these remain the best ways to abate heat stress:

• Provide and replace fluids.
• Reduce physical work demands.
• Provide recovery areas and shade.
• Train and monitor employees on heat stress symptoms.
• Reschedule hot jobs.
• Acclimatize employees.