What to Expect From OSHA’s New Heat Stress Standard

Since the Occupational Safety and Health Administration (OSHA) was created in 1970, heat-related illness has been enforced under the General Duty Clause of the Agency’s enabling legislation (the Occupational Safety and Health Act).

Fifty years hence, in response to repeated requests from labor organizations and public activist groups, including Public Citizen, OSHA has announced steps to start work on a federal workplace standard specifically focused on heat stress. Its ultimate goal is to reduce the number of heat-related occupational injuries, illnesses, and fatalities caused by exposure to hazardous heat through prevention by more clearly setting forth employer obligations and the measures necessary to protect employees from hazardous heat more effectively. 

Since roofing involves heat stress by its very nature, this article will focus on what rules and enforcement to expect, when to expect it, and how to prepare.

Why Now?

According to OSHA, heat is the leading cause of death among all weather-related phenomena. Excessive heat can cause heatstroke and even death if not appropriately treated, and it exacerbates existing health problems like asthma, kidney failure, and heart disease.

Climate change has heightened Agency concerns about heat stress as 18 of the last 19 years were the hottest on record. The frequency and intensity of extreme heat events have increased, as have average daily temperatures.

The Agency has also expressed concerns that increased occupational heat stress exacerbates inequality due to workforce demographics.

The Advance Notice

On October 27, 2021, OSHA kicked off the rulemaking process with the publication of the Advance Notice of Proposed Rulemaking (ANPRM) for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings in the Federal Register, initiating a comment period through January 26, 2022.

OSHA seeks input to address questions in several broad areas.

• Hazard assessment: What is the extent, nature, and scope of the problem across various industries, work settings (indoors vs. outdoors), and company sizes? What temperature thresholds are appropriate?

• Preventive interventions and controls: What is being done in the public sector (at the federal and state level) and the private sector (by employers and associations)? How effective are plans and programs for training, heat acclimatization, engineering, and administrative measures?

• Response: How should employers respond to life-threatening conditions and less urgent illnesses?

• Cost/benefit analyses: What are the costs, economic impacts, and benefits of the proposed rule and its enforcement? The ANPRM notes that the fatality rate is only about one in a million in the construction industry.

What to Expect From the New Rule

These comment areas inform our expectations of what the final rule may include. Based on an analysis of the ANPRM and the federal and state legislative and regulatory environment, we anticipate that the final rule will task employers to develop and implement written heat-related illness, injury prevention, and treatment plans, including the following provisions.

• Preventive interventions and controls that maximize personnel health and safety: These may include acclimatizing new workers and those returning from time off; communicating high heat hazards to supervisors and workers; hydrating (providing cool, potable water and sports drinks that contain balanced electrolytes near the worksite); monitoring employee physical health and well-being before and during work; keeping compliance records; limitingwork time in hazardous heat conditions; reducing workload by adding personnel or using machinery; and trainingsupervisors and workers.

• Response: The rule will almost certainly require employers to promptly provide appropriate treatment for heat-related afflictions by calling 911 for emergency medical treatment in cases of life-threatening illness, or making first aid available for non-life-threatening conditions.

Enforcement of Current Rules

Meanwhile, OSHA is more aggressively enforcing existing rules under its General Duty Clause authority, prioritizing indoor and outdoor heat-related inspections on days when the heat index exceeds 80 degrees Fahrenheit. All OSHA inspections will address heat-related hazards where conditions merit. The Agency will emphasize heat illnesses such as heat cramps, heat exhaustion, and heatstroke among outdoor workers. Enforcement steps will include inspecting or intervening at worksites where strenuous work is done in hot conditions, as well as investigating heat-related complaints, referrals, and employer-reported illnesses.

Inspections are expected to involve several techniques.

• Document review: Inspectors will examine heat-related employer documents, including OSHA injury and illness logs and reports, emergency room visits, ambulance transport records, and any available heat illness prevention plans.

• Employee interviews: Inspectors may interview employees for reports of headache, dizziness, fainting, dehydration, or other symptoms that may indicate heat-related illnesses.

• Taking your workplace temperature: Inspectors may document the heat index at your worksites with the OSHA-NIOSH Heat App (available for Android and iOS mobile phones and tablets) and WetBulb Globe Temperature (WBGT) calculations.

• Identifying potentially heat-hazardous conditions and activities: Inspectors may identify conditions and activities, including the use of heavy or bulky clothing or equipment; strenuous worker activity; and on-site availability of shade, water, and rest breaks in air-conditioned spaces.

Next Steps

Here’s what we recommend you do now:

• Be vigilant and mindful of OSHA’s enhanced enforcement of heat-related illness issues under its current authority. Audit your operation versus the inspection protocol outlined above and take any necessary compliance measures.

• Speak now or forever hold your peace. Now is the time for roofers and their associations to educate OSHA’s rule-makers to help them make informed decisions on the unique issues involved in the roofing workplace.

• Audit your current practices against the expected rule provisions. Identify gaps between your current plans and programs and the reasonable expectations for the final rule outlined above.

• Plan your compliance program accordingly. Identify resources that can help you implement the appropriate policies and procedures, including model documentation.

Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.

About the author: Trent Cotney is an advocate for the roofing industry, General Counsel of the National Roofing Contractors Association (NRCA) and several other industry associations. For more information, contact the author at (866) 303-5868 or visit www.cotneycl.com.