Examining OSHA’s Proposed Standard for Heat Injury and Illness Prevention

On August 30, 2024, the Occupational Safety and Health Administration (OSHA) published a proposed standard for heat injury and illness prevention. The proposal would apply to general industry, construction, maritime, and agricultural employers for both outdoor and indoor work. Public comments are open until January 14, 2025.

The National Institute for Occupational Safety and Health estimated that from 1992 to 2016 the construction industry averaged 11.875 heat exposure deaths per year. The Bureau of Labor Statistics (BLS) published its National Census of Fatal Occupational Injuries showing that across all occupations in 2021, extreme temperatures resulted in 43 deaths. This increased in 2022 to 51 fatalities. By comparison, despite strong OSHA standards for working at heights, deaths from falls during 2021 and 2022 were 825 and 844 respectively.

Nonfatal Injuries and Illness

Nonfatal injuries and illness are also a concern. Over a 29-year span from 1992 to 2020, there were 75,577 nonfatal private-sector injuries from environmental heat. The average over this period was 2,606 per year. In 2021 and 2022, BLS reported an annual average of 2,455 nonfatal injuries or illnesses from heat exposure. Of these, 310 occurred in the construction industry. 

Over the same period, BLS identified an annual average of 183,835 nonfatal injuries or illnesses due to falls. Of these, construction accounted for 16,900, and “Roofers” accounted for 1,195.

This data shows that with no established safety standard, heat-related fatalities and nonfatal injuries and illnesses infrequently occur compared to injuries and deaths from falls, for which strong employee protections exist. This suggests adequate protective measures in OSHA’s past interpretations, which reveal a bipartisan, common-sense approach.

Under the general duty and protective equipment requirements, OSHA, under both George W. Bush in 2001 and Barak Obama in 2010, advised that employers should: allow employees to take breaks for water or cold liquid “at liberty”; establish a work/rest regimen to decrease exposure time to high temperatures; and develop a heat stress program that included training, health screening, acclimation, emergency response planning, and first aid.

Committing employer resources to a standard for heat-related injuries and illnesses is a shift in federal policy. California, Oregon, Washington, Colorado, and Minnesota have existing state standards. These states tend toward more progressive governance, and a federal standard will impose a similar resource commitment nationally.

Targeting Heat

The Biden administration advanced the standard as an equitable effort in anticipation of climate change. In a fact sheet of September 20, 2021, the White House targeted heat as the nation’s leading weather-related killer with a disproportionate impact on “Black and Brown workers.” To facilitate environmental justice, heat was identified as a “growing workplace hazard” most felt by agricultural and construction workers. The fact sheet asserted that many heat-induced injuries and illnesses are misclassified or not reported “especially in sectors that employ vulnerable and undocumented workers.”

A fact sheet of July 11, 2023 touted over $50 billion in spending to protect communities from extreme heat. The fact sheet reported creation of a heat equity mapping tool, establishing the Office of Climate Change and Health Equity, progress toward OSHA’s heat exposure standard, and over 2,800 OSHA inspections related to heat stress since October 2021.

These publications describe an overarching policy that anticipates increased heat from climate change. The policy appears to discount existing data, and it appears to deem OSHA interpretations of the Bush and Obama administrations insufficient or inequitable based on anticipated changes in climate. The proposed standard was published in the Federal Register as item 2024-14824 in Volume 89 at page 70698 and is available online: https://www.govinfo.gov/content/pkg/FR-2024-08-30/pdf/2024-14824.pdf.  

Heat Standards

The standard applies when employee exposure reaches the initial heat trigger, a heat index of 80° F. The high heat trigger is a heat index of 90° F. Employers must track local forecasts of heat index or the temperature and humidity as close as possible to work sites.  Employers must compute the heat index from temperature and humidity data. The National Weather Service publishes a heat index chart at https://www.weather.gov/ffc/hichart.

The standard is inapplicable where the initial heat trigger is not reasonably expected to be reached or heat exposure is less than 15 minutes per hour.  It is inapplicable to emergency response activities, indoor work with air conditioned below 80° F, sedentary work, or telework (at a location of the employee’s choosing).

Otherwise, it applies to indoor and outdoor work. It requires a Heat Injury and Illness Prevention Plan (HIIPP) specific to each work site. The HIIPP must consider input from non-managerial employees and must be in writing for employers with 10 or more employees. The HIIPP must address policies and procedures for compliance, and a heat safety coordinator must be designated to implement and monitor the HIIPP.

After a heat-related illness or injury that results in death, loss of consciousness, days away from work, or treatment beyond first aid, employers must reevaluate their HIIPP. The HIIPP must be available to all employees at a work site, and it must be in a language or languages so that each employee, supervisors, and heat safety coordinator can understand it.

Importance of Monitoring

Outdoors, employers must monitor employee heat exposure with reasonable accuracy and sufficient frequency. Indoors, areas of heat exposure must be identified and monitored for initial and high heat triggers. Monitoring must measure the heat index, wet bulb globe temperature, or the temperature and humidity. Employers must maintain monitoring records for 6 months.  Material changes to an indoor work site, such as production levels, processes, equipment, controls, or substantial increases in outdoor temperature, require reevaluation and modification of the HIIPP.

Employers can exempt themselves from monitoring by assuming work at or above the initial and high heat triggers. The exemption requires employers to utilize control measures at each trigger level. For the initial heat trigger controls include providing water, break areas, acclimatization (easing new or returning employees into positions with exposure to heat), effective communication, and personal protective equipment (PPE).

For the high heat trigger, controls include rest breaks, observation, hazard alerts prior to work shifts, and warning signs for indoor high heat areas. Controls also include a mandatory buddy system or observation of up to 20 employees per supervisor. For employees working in isolation, contact must be made once every two hours. Specific requirements for break areas vary between indoor and outdoor work. For excessively high heat areas, indoor areas with an ambient temperature exceeding 120° F, warning signs are required.

Each HIIPP must include a heat emergency response plan (HERP) with phone contacts for emergency service providers local to work sites and contact information for supervisors. A HERP must designate an individual on each work site to implement it.  It must describe how to transport employees to locations accessible by emergency responders, and must contain clear, precise directions to work sites.

A HERP must describe procedures for responding to signs and symptoms of heat-related illness or injury (SSHRII) and signs and symptoms of a heat emergency (SSHE).  Employees with SSHRII must be relieved from duty, be monitored, be accompanied, and be offered first aid or medical services before monitoring is ended.  Employees with SSHRII must be provided means for reducing body temperature. An employee demonstrating SSHE compels employers to contact emergency personnel and, prior to arrival of emergency personal, requires employers to take immediate measures to reduce the employee’s body temperature.

Training and Factors

The standard requires initial training, supervisor training, annual refresher training, and supplemental training. Training includes information regarding heat stress, heat-related illnesses or injuries, and related risk factors. Risk factors include exertion, clothing, lack of acclimatization, and personal characteristics like age, health, alcohol consumption, and medications. Training must help employees identify when emergency response to SSHRII and SSHE is required.  It must discuss employee rights under the standard, required control measures, and prohibition of discrimination against employees exercising their rights.

The standard augments the approach of prior OSHA interpretations under general duty and PPE requirements. It formalizes and supplements protections many employers presently have in place. It requires planning, training, and communication in emergency response situations, and its protections will be subject to OSHA inspection, compliance, and penalty procedures.

For the roofing industry, the multiple language requirement for the HIIPP and employee training imposes an administrative burden. Updating emergency service contacts and directions to each jobsite may impact those completing multiple roofing jobs each week.

Readers should identify their own concerns by reviewing the standard and providing comments on the impact of the proposal at https://www.regulations.gov/docket/OSHA-2021-0009.

Author’s note: The above article is not, and should not be construed as, legal advice. For specific advice, consult with an attorney licensed in your state.

About the author: 

Matt Blake is an attorney with Raleigh, North Carolina-based Anderson & Jones, PLLC. He has more than 25 years of experience in workers’ compensation and employment disputes. He monitors and helps clients respond to legislative, administrative, and judicial developments. Questions about this article can be directed to him at [email protected].