An employer attorney says companies, especially small businesses, are likely to push OSHA for greater flexibility in its upcoming heat-danger standard after the agency quietly released a lengthy list of “potential options” for its proposal including a range of possible heat-control requirements, temperature thresholds and training mandates.
“If the rule is something that is too complicated or just really too difficult to implement in practice . . . particularly for small businesses to understand and implement . . . I think that there will be criticism from the employer side,” Jamie Spataro, a shareholder at the law firm Littler, told Inside OSHA in a recent interview.
Spataro was reacting to OSHA’s “regulatory framework” document for the heat standard, which the agency quietly posted on Aug. 24 at the outset of its ongoing small-business consultation to inform an eventual proposed general-industry heat rule for indoor and outdoor work.
“This document is meant to provide an outline of potential options for the various elements of a proposed rule. OSHA envisions a programmatic standard that could require employers to create a plan to evaluate and control heat hazards in their workplace. The standard could allow for flexibility for employers to customize the plan to their workplace. The standard could also include some elements that set specifications related to heat exposure levels,” it reads.
Generally, the framework describes a rule that would require employers to craft written Heat Injury and Illness Prevention Programs (HIIPPs). As part of those plans, the agency could require procedures to identify heat hazards for employees; administrative controls such as providing drinking water, rest breaks in cool areas; acclimatization protocols; supervision of employees for symptoms of heat-related illness and procedures for when symptoms occur; and heat training for employees and supervisors.
It also notes that very small employers could potentially be exempt from having to implement an HIIPP, as they might not have the resources to develop one.
The document draws on the National Institute for Occupational Safety and Health (NIOSH) Criteria for a Recommended Standard, stakeholder comments submitted in response to a 2021 advance notice of proposed rulemaking (ANPRM), and existing state standards, such as those in California.
Its release follows OSHA’s formal opening of a Small Business Regulatory Enforcement Fairness Act (SBREFA) consultation process to inform the eventual proposed rule, and marks the first concrete statement from the agency on what options it is considering for the standard following the ANPRM.
In the absence of such a rule, the Biden administration has escalated enforcement for heat dangers under the OSH Act’s general duty clause, including a formal enforcement emphasis program and most recently a heat hazard alert in July.
Need For ‘Flexibility’
OSHA’s outline could help satisfy labor groups and Democratic lawmakers who have long pushed for a stringent heat standard, though Spataro notes that it still leaves open the possibility of a rule less stringent than they favor.
“Of course, if the rule doesn’t have enough teeth, we will see criticism . . . from the workers’ advocate side,” he said, adding that he hopes to see OSHA strike a “meaningful balance” between labor and employers in the rulemaking -- and in particular, maintain “flexibility” in its eventual proposed rule.
Spataro added that it is “particularly critical” to ensure the proposal considers the needs of small employers, as some of the requirements could be difficult for those firms to meet due to limited financial and personnel resources.
For example, he said, many of the potential requirements make it “important for employers to have some measure of expertise and sophistication with some of the issues involving heat illness,” such as signs of potential illness or injury.
“For that reason, I think it's important that the rulemaking acknowledge that [it] needs to be reflective of smaller businesses that may have limited resources and may have limited personnel available to, for example, take temperatures at certain time intervals, and making sure that those time intervals are reasonable,” Spataro said, adding that some may “have very few staff available to make those measurements.”
And he said flexibility could mean not waiving some requirements, but “recogniz[ing] that maybe a small business may have to take different measures to reach the same goal that a larger employer may be able to do.”
He added, “I think it just is something that has to be flexible and broad, and recognize that certain employers may be able to reach the same goal in a different way than other types of employers. I think that that's the way to [be] successful.”
And he said it will be important for OSHA to carefully consider state-level heat standards, particularly for indoor workers. “[T]hose will be particularly telling in advance of a proposal being published.”
Finally, while he said he is hopeful that OSHA will eventually publish a rule, he has concerns about the amount of time it has taken to craft even a proposal, which has run nearly two years since the ANPRM. That long timeline could stretch the final rule out beyond President Joe Biden’s current term, he said.
“But I think that's just one more reason why they’re going to push you particularly hard on this particular rule, because their time is limited,” he said of unions and their allies.
Potential Requirements
OSHA’s framework includes several options for hazard identification and assessment, setting out several ways employers could be required to identify heat dangers to their workers.
At outdoor sites, for example, “the standard could require that employers monitor weather conditions to determine when there is a heat hazard,” with options for employers to include local forecasts and direct temperature measurements in their monitoring.
And for indoor sites, “The standard could require employers to conduct a hazard assessment to identify the work areas or processes where there is the potential for employees to be exposed to heat hazards, including a determination of whether and when outdoor heat affects indoor temperature/heat index at the work site.”
It continues, “Employers could be required to conduct additional monitoring or a new hazard assessment whenever a change in production, process, equipment, or controls has the potential to increase heat exposure.”
For hazard prevention and control measures, the document details a range of possible engineering controls such as providing employees with cool-down areas for breaks, or mandating shade, air conditioning and cold water. For indoor sites, one option would require break areas to include increased air movement in addition to water, with the agency “considering specifying additional requirements for location, temperature, and quantity.”
Another section says OSHA also could require “employers to adopt protections for new and returning employees who may not be acclimatized to working in the heat at or above the initial heat trigger,” “the supervision of employees for signs and symptoms of heat-related illness,” or use of personal protective equipment (PPE).
Additional administrative controls named as options include altering work schedules, notifying employees of heat conditions and restricting access to high-heat areas for indoor employees.
And the training provisions could require workers to be instructed on identification of heat hazards, signs of heat illness and preventative measures, among other steps. -- Sarah Mattalian (smattalian@iwpnews.com)