OSHA Looks to California, Other States on Proposed Heat Standard

​It's autumn, but the Occupational Safety and Health Administration (OSHA) has summer in mind, issuing an advance notice of proposed rulemaking (ANPRM) that notes the agency is considering creating, for the first time, a federal standard to prevent heat illness.

The ANPRM reviewed state standards, including California standards, on preventing heat illness and death, and sought input as to whether the agency should incorporate some of these standards into a final federal rule. Comments are due Dec. 27.

"Employers should anticipate federal OSHA's heat standard will adopt some, or perhaps many, of the provisions from heat-stress standards previously implemented in California, Minnesota, Oregon and Washington," said Curtis Moore, an attorney with Fisher Phillips in Charlotte, N.C.

Added Phillip Russell, an attorney with Ogletree Deakins in Tampa, Fla., "The notice suggests federal OSHA will be taking a similar approach to California by requiring heat injury and illness prevention programs, workplace controls, acclimatization, monitoring, emergency response and worker training, and engagement by employers."

OSHA has identified certain industries, such as construction, manufacturing, agriculture, transportation and warehousing, as having the highest average number of fatalities per year due to heat illness, "so these businesses in particular should seriously consider being part of this rulemaking process to ensure their concerns and ideas can be heard," said John Ho, an attorney with Cozen O'Connor in New York City. Notably, from 2000 to 2010, agricultural workers' risk of dying from heat-related causes was 35 times higher than that of employees in all other industries, OSHA stated.

History and Requirements of State Standards

Some heat illness prevention standards were passed in the Pacific Northwest this past summer.

Oregon issued a temporary rule in July after experiencing temperatures above 100 degrees Fahrenheit, OSHA said. Washington state also issued emergency heat rules this past summer that provided workers with protections in addition to the state's previously issued heat rule.

State standards differ in their scope of coverage, OSHA observed. For example, Minnesota's standard covers only indoor workplaces. California's and Washington's standards cover only outdoor workplaces, although California is engaged in rulemaking for a potential indoor heat standard. Oregon's emergency rule covers both indoor and outdoor workplaces.

California, Washington and Oregon all have additional protections that are triggered by high heat, but the trigger for these extra protections differ. In Washington, the trigger is a temperature reading of 100 degrees Fahrenheit, while in Oregon it is a heat index of 90 degrees Fahrenheit.

In California, it is a temperature reading of 95 degrees Fahrenheit and includes only certain industries. For example, when the temperature reaches 95 degrees or above in California, agricultural employers must ensure that their workers rest for at least 10 minutes every two hours; encourage employees to drink small quantities of water more frequently; and hold short, regular meetings to review emergency response measures.

There is a great disparity in the trigger level at which a hazard exists because ambient temperature, humidity and metabolic heat can vary for each workforce, noted Mark Lies, an attorney with Seyfarth in Chicago. The trigger level "does not take into account the individual employee's health conditions and ability to tolerate heat," he added. "It will be a challenge to set an absolute number in a regulation at which every employee can potentially be exposed to heat illness."

All existing state standards require training for employees and supervisors. All except for Minnesota's require employers to provide at least one quart of water per hour for each employee, offer access to shade break areas, establish an emergency response plan and mention the importance of acclimatization for workers.

California has the most robust acclimatization program, which mandates close monitoring of new employees for up to 14 days and monitoring of all employees during a heat wave, OSHA noted.

OSHA's Questions

OSHA had numerous questions in its ANPRM, including some about existing efforts at the state level to prevent occupational heat-related illness, such as:

• What are the most effective aspects of existing state standards aimed at preventing occupational heat-related illness?
• What are the challenges associated with implementing the existing state standards?
• Which components of state standards or programs should be included in federal guidance or regulatory efforts on heat-related illness prevention?
• Would any of the elements of the state standards not be feasible to include at the federal level?

General Duty Clause

Although OSHA does not have a specific standard governing hazardous heat conditions at work, the agency currently enforces the general duty clause of the Occupational Safety and Health Act against employers that expose their workers to this hazard. The clause states that employers have a responsibility to provide their employees with a workplace free from recognized hazards that cause or are likely to cause death or serious physical harm.

Nonetheless, the general duty clause does not specifically prescribe hazardous heat exposure thresholds or provide specifics for how employers are to eliminate or reduce their employees' exposure to hazardous heat. In addition, OSHA noted that its enforcement efforts to protect employees from hazardous heat conditions under the general duty clause have been met with significant legal challenges.

However, OSHA will use the general duty clause as a basis for citations for heat-related illness and fatalities until a federal heat standard can be issued, said Bill Principe, an attorney with Constangy, Brooks, Smith & Prophete in Atlanta. "The ANPRM is just the first step."