House Subcommittee Hearing Raises Concerns About Proposed Heat Illness Rule

A U.S. House of Representatives Workforce Protections Subcommittee oversight hearing of the Occupational Safety and Health Administration (OSHA) on July 24 raised concerns about the agency’s proposed heat illness rule. Those concerns included that the rule was being rushed and that it places undue burdens on employers.

However, some said the rule is needed to protect workers and defended the agency’s rulemaking.

A worker, Gabriel Infante, started showing signs of heatstroke on the job in San Antonio last year, but his employer allegedly thought he was on drugs, said Jordan Barab, a witness and former deputy assistant secretary of OSHA from Takoma Park, Md., in written testimony. By the time the employer realized Infante needed help, it was too late, according to Barab.

“Gabriel Infante would be alive today if the heat standard was in place,” Barab testified. “OSHA standards save lives.”

Proposed Heat Standard

OSHA on July 2 issued a proposed rule to shield indoor and outdoor workers from heat illness.

Felicia Watson, a hearing witness and attorney at Littler in Washington, D.C., shared three concerns about the proposed rule. First, she said that the rulemaking process had “become perfunctory.”

Although there was an advance notice of proposed rulemaking in 2021, that resulted in discussions rather than the proposed rule that was just released. The proposed rule is 1,175 pages long, and the Office of Information and Regulatory Affairs spent only 14 business days reviewing it, Watson said.

Second, Watson said OSHA’s approach “will in effect force employers into the role of parents” who have to treat employees like children they must take care of. Employers and employees both have duties under the Occupational Safety and Health Act, she noted.

Heat-related illnesses are not always straightforward or obvious, Watson added. Such conditions can be more complicated than they first appear.

Some symptoms of heat-related illness can also be signs of other illnesses such as the flu or COVID-19, she said. Underlying health issues and personal behaviors when away from the worksite can also affect an employee on the job. Yet, if an employee shows any symptom of a heat-related illness at work, an employer under the proposed rule can receive a citation and penalty if it does not act quickly enough—unless it establishes that the condition was not heat-related, Watson said.

Third, Watson said that OSHA missed an opportunity to help employees clearly understand their obligations.

The proposed rule provides one all-encompassing rule applicable to all industry types with little flexibility for employers, Watson said.

When Barab was deputy assistant secretary of OSHA, the agency declined to issue a heat standard. Rep. Alma Adams, D-N.C., the Workforce Protections Subcommittee’s  ranking member, asked Barab if he was opposed to the proposed rule. Adams added that some observers have argued that the standard is impossible to meet because different people have varying susceptibilities to heat.

It’s a fairly simple process to protect workers from the heat, Barab responded. Water, shade, rest, having an emergency response program, and training are the keys, he said.

Rep. Mark Takano, D-Calif., said, “This is the hottest summer recorded ever.” Takano asked Barab why heat illness workplace regulations are needed when extreme heat and increasing temperatures are part of the new reality.

People are ill-equipped to deal with the heat unless, as the OSHA proposal provides, there is enough shade, water, and rest, Barab replied.