OSHA’s Worker Heat Rule?

Since 2021, OSHA has been working on a heat stress rule, following a decade’s worth of advocacy groups and members of Congress calling for action. Supporters of a rule cite a changing climate and worker heated-related deaths as drivers of their concern. Outside of the rulemaking, the agency has been conducting an annual heat awareness campaign since 2012 and enacted a heat enforcement program in 2022. The challenge for OSHA is that the rule’s requirements will have to be precise and per OSHA, the agency must go through 46 steps to enact a rule, 39 of which are dictated by laws passed by Congress or White House executive orders.

Currently, OSHA’s heat rule is at step 20, conducting a small business review, a requirement set by law that all significant OSHA rules must fulfill.

Additionally, working conditions for indoor and outdoor workers vary considerably, but OSHA is attempting to regulate both at same time rather than first issuing either an outdoor or indoor rule.  OSHA’s refrain of “water, rest, shade” fits for outdoor workplaces such as construction sites and farms, but it does not necessarily translate well for workers inside warehouses, kitchens, and industrial laundries with no air conditioning.  The expansive scope of OSHA’s proposed rule means conducting scientific and economic analyses for a wide range of industries and then writing a common set of requirements for protecting workers.

It’s not a simple undertaking.

For regulators, a confounding part of a heat stress regulation is deciding which temperatures trigger requirements for employers.  For outdoors, states with heat rules have generally set 80 degrees or an 80-degree heat index as the trigger temperature.  OSHA could mandate that employers have a written heat stress prevention program, per its 2021 rule proposal.  Studies of OSHA heat enforcement cases found most cited employers did not have a hot weather plan or train workers about heat stress.  Under a plan, indoor employers could alleviate heat concerns by improving ventilation, increasing air conditioning, and insulating heat sources.

Outdoors, workers would need regular access to shade, paid time to rest, and cool water.

A key component may be allowing workers to become accustomed to laboring in hot weather (acclimatization). Studies mentioned in OSHA’s rule proposal suggested a worker needs at least five days to adjust to hot temperatures and that laborers starting acclimatization should not work a full shift in hot conditions.  Employers have countered that acclimatization shift restrictions could lead to temporary workers not being hired. Another concern is that phasing in workers is not practical for worksites where workers cannot be rotated between hot and cooler daily assignments.

Finally, regulators will have to consider that heat affects everyone differently. In past enforcement actions, OSHA has suggested employers be aware if workers have medical conditions that make them more susceptible to heat stress, but some employers see the issue as raising medical privacy concerns and opening the door to disability and age discrimination allegations.