What’s being done to protect workers from heat illness?

Transforming a proposed regulation into an actionable and enforceable final rule takes time.

As Jay Withrow of the Virginia Department of Labor and Industry sees it, the complex nature of OSHA’s proposed rule on protecting workers from extreme heat exposure in indoor and outdoor settings warrants additional patience.

“It’s a very unique regulation to try to adopt, because I can’t think of another one where you have to deal with both interior and exterior, inside-outside hazards, and that also can be impacted by geography around the country.”

Withrow, president of DOLI’s Division of Legal Support, is a member of OSHA’s National Advisory Committee on Occupational Safety and Health. He shared those thoughts during a recent meeting of NACOSH’s work group on heat injury and illness prevention.

Calls for quick action remain strong: In February, the attorneys general of California, Illinois, Maryland, Massachusetts, New Jersey, New York and Pennsylvania sent a petition to OSHA administrator Doug Parker calling for an emergency temporary standard that applies when the heat index reaches 80° F.

As temperatures rise during the summer – and throughout the year – Safety+Health looks at ongoing federal and state efforts to protect workers.

NACOSH offers input

Formed after OSHA published the advance notice of proposed rulemaking in the Oct. 27, 2021, Federal Register, the NACOSH work group on heat has met five times to provide feedback on existing guidance materials and share recommendations for a possible final rule.

During an April 27 meeting, members discussed elements they believe OSHA should consider. Among them are a requirement that employers develop a written exposure control plan/heat illness prevention plan that would:

• Provide a framework for risk/hazard assessment.
• Identify triggers and what will take place.
• Ensure management and employees are informed about hazards, what to expect and who’s in charge.

Managers and workers would need to know how to implement the plan and be trained on it. A suggested training framework includes segments on hazard identification and prevention, how to report adverse heat-related events, and preparing for and responding to a heat-related emergency.

The group added that OSHA should consider provisions related to onsite environmental and temperature monitoring systems, which would allow employers to assess conditions and apply controls accordingly.

When applying controls, employers should “make sure intention meets the need.” For example, water should be palatable or potable. Also, employers shouldn’t let workers seek shade in a vehicle that’s warm from the heat.

The group also discussed the importance of understanding acclimatization – for example, workers can’t build tolerance if they’re exposed to a sudden heat wave – and the need to avoid a one-size-fits-all approach by taking into account the concerns of smaller employers who have fewer resources.

During a May 31 public meeting, the work group presented a report to the full committee, which accepted a motion to forward to OSHA the work group’s formal recommendations, as well as a sample exposure control plan/heat illness prevention plan.

Earlier in the meeting, Andrew Levinson, director of OSHA’s Directorate of Standards and Guidance, said the agency rulemaking was “right on the cusp” of advancing to a Small Business Regulatory Enforcement Fairness Act panel for review before the proposed standard is published. However, he told S+H he couldn’t project a date for the initiation of the SBREFA process.

At the state level

In many states, rules intended to protect workers from heat-related illnesses either are on the books or have been pushed for in legislatures.

California: A heat standard for outdoor workers went into effect in 2005. In addition to ensuring employers provide access to water and shade, the rule requires that “an effective heat illness prevention plan” be created and maintained. The plan must be available at the worksite and written in both English “and the language understood by the majority of the employees.” On March 31 of this year, the California Division of Occupational Safety and Health Standards Board published a proposed rule specific to indoor workplaces. The rule would require employers to include a plan for access to cool-down areas, water, emergency response procedures and close observation during acclimatization. It also would require employers to implement engineering controls to keep the temperature below 87° F when workers are present. Comments were under review at press time.

Colorado: A heat illness and injury protection rule that went into effect in 2022 applies to agricultural workers on days the temperature is forecast to be at least 80° F. Employers must provide workers with drinking water and access to adequate shade. Further provisions are outlined when “increased risk conditions” related to temperature, air quality, work duration, equipment and acclimatization arise.

Minnesota: The state’s rule on regulating indoor air temperatures in places of employment says workers “shall not be exposed to indoor environmental heat conditions in excess” of 86° F for light work, 80° F for moderate work and 77° F for heavy work. Workers exposed to heat also are required to undergo training under the rule, which was revised in 1997.

New York: Legislation introduced in February would establish a workplace standard on heat and cold that covers workers in agriculture, construction, landscaping, delivery and food service, and in work vehicles. Accommodations include providing workers access to water and shade when temperatures reach 80° F or higher. If workers spend more than 60 minutes a day in a vehicle or the vehicle is considered their worksite, the vehicle would need to have adequate air conditioning. The companion bills advanced to Senate and Assembly committees, respectively, but the bill ultimately failed when the New York State Legislature session ended June 8.

Nevada: The Extreme Weather Working Conditions Bill (S.B. 427) was referred to the Senate Commerce and Labor Committee on April 27 after the first reprint passed the Senate. The bill would revise current workplace safety and health law to require additional provisions in employers’ existing written safety programs. These include:

• A program to mitigate heat-related illness on any day when the temperature is expected to be 95° F or higher.
• A training program for employees who might be affected by heat-related illness issues.
• A program to mitigate poor air quality exposure on any day when workers are exposed to air with an Air Quality Index value of 201 or higher.

Employers also would be required to provide workers with a 10-minute rest break each hour, as well as access to shade and at least a quart of cool, fresh drinking water.

Oregon: Oregon’s rule took effect in 2022. It applies to workers in indoor and outdoor settings in which the heat index is at least 80° F. It also addresses worker access to shade and cool water; preventive cool-down breaks; and prevention plans, information and training.

Washington: The state’s permanent rules on worker heat exposure went into effect in 2008. A proposed update, which would be in place year-round, was in the comment review stage at press time. The rule would set the “temperature action level” at 80° F for most outdoor workers.

The Washington State Department of Labor & Industries says the level would apply to specific portions of the rule, including drinking water and shade.

Additional changes would involve:

• Specifics on when and how much shade must be provided.
• Access to cool-down periods as needed to prevent overheating.
• A section on acclimatization, requiring close observation of all workers – including new workers and those returning from absences – during heat waves.
• High-heat procedures that require close observation of workers and mandatory cool-down periods of 10 minutes every two hours when the temperature reaches 90° F, and 15 minutes every hour at 100° F.

OSHA’s National Emphasis Program

OSHA’s National Emphasis Program on heat-related inspections has been in place since April 2022. The program includes plans to conduct inspections in more than 70 “high-risk” industries when the heat index in an area reaches 80° F or higher.

OSHA told S+H that the NEP, which is set to remain in effect until 2025, has helped the agency improve its collection of data related to employer heat illness prevention, workload estimates and measurement of environmental conditions “to better understand worker exposure to and protection from indoor and outdoor heat.”

OSHA has examined aggregated enforcement data over the past 10 years in an effort to specifically identify and analyze heat-related and enforcement activities, including inspection outcomes and behavior of the employers inspected.

Reviewing data also has helped the agency study the effectiveness of abatement actions associated with heat-enforcement citations and strategize how the agency can perform follow-up evaluations to “examine the consequences of citations in protecting workers.”

Further, OSHA Regions 4, 6 and 9 (which encompass 18 states – and three territories – mostly in the Southeast, South and Southwest United States) conducted a pilot project that studied employer heat illness prevention programs.

The agency found that most employers provided workers with water, rest breaks, shade and training, but fewer adjusted work levels with environmental conditions in mind, had written heat illness prevention programs, or provided acclimatization for new and returning workers.

“OSHA will continue to identify ways to improve enforcement and compliance assistance strategies to protect the safety and health of workers from heat,” the agency says.