October 2024 Vol. 79 No. 10
Inside Infrastructure
OSHA proposed rule on heat exposure raises ire from construction industry
By Eben M. Wyman, Wyman Associates
The Occupational Safety and Health Administration (OSHA) issued a proposed rule in July that would affect all employers nationwide and require, among other things, a written heat injury and illness prevention plan, substantial heat-injury-related precautions, training and regular, comprehensive program reviews and updates.
Its proposed “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings” rule would be subject to all employers and would establish an elaborate and prescriptive set of required measures to be followed when employees are exposed to temperatures of 80ºF for more than 15 minutes in any given 60-minute period.
The proposed rule would require employers to monitor for heat risks on job sites and provide drinking water, rest breaks and other temperature controls once the temperature crosses certain thresholds. It also would require plans for safely acclimatizing workers to high heat environments, among a range of prescriptive new requirements.
According to OSHA, heat is a leading cause of death among all weather-related injuries, and OSHA designed the rule to broadly apply across industries and worksites, recognizing that employers in different industries are impacted by heat hazards. OSHA claims that the proposed rule will provide flexibility for employers to comply, by selecting the control measures that make the most sense for their operations. Most employers, especially in the construction industry, take major issue with this claim.
In recent years, OSHA has used its National Emphasis Program to reinforce its “Water, Rest, Shade” guidance for workers in high temperatures. Under existing “general duties clause” requirements, employers are required to provide workers with an environment free from hazards. Until now, protecting workers from intense heat has fallen under that standard.
In addition, several states already have heat illness prevention standards, including California, Minnesota, Oregon and Washington. Most companies recognize high temperatures can pose health hazards to employees, and they already employ various methods to avoid heat illness. Unfortunately, OSHA is replacing common-sense approaches with over-the-top, unnecessary new regulations.
New prescriptive requirements
The proposed rule would require employers with more than 10 employees to establish a Heat Illness and Injury Protection Program (HIIPP) that includes a comprehensive list of the job functions covered. This would include a description of how the employer complies with the heat exposure standard, the means the employer uses to monitor varying temperatures, emergency contact information and procedures to follow when employees experience signs and symptoms of a heat-related illness, and a list of authorized safety coordinators to ensure compliance.
Employers would be required to review and evaluate the effectiveness of an HIIPP whenever recordable heat incidents occur and make necessary adjustments as needed. On top of all this, the proposal also includes an exhaustive list of overly prescriptive heat injury prevention measures that employers would have to implement, including:
• Providing easy access to potable drinking water at an appropriately cool temperature, in quantities of one quart per employee, per hour
• Providing break areas for outdoor worksites that are naturally or artificially shaded, or enclosed spaces with fans or air conditioning
• Allowing and encouraging paid rest breaks in designated break areas with artificial shade, natural shade or air-conditioning and
• Maintaining regular two-way communication with employees
Under the proposed rule, if a high heat trigger of a heat index of 90ºF is met, additional measures would have to be implemented, including a mandatory paid 15-minute rest break every two hours, “hazard alerts” issued by the employer to notify employees of mandatory rest breaks (as well as breaks as needed) and the importance of staying hydrated. A system to monitor employees for symptoms of unsafe heat exposure would also be required, such as a “buddy system,” where workers observe each other in addition to supervisor observation.
Coalitions like the Construction Industry Safety Coalition (CISC) and the Coalition for Workplace Safety have been monitoring and weighing in on this proposal since OSHA began developing the proposed rule in 2021. CISC is comprised of several trade associations, representing virtually every aspect of the construction industry, committed to helping create safer construction job sites for workers. In several letters to federal authorities, CISC said that is has remained at the forefront of industry efforts to protect construction workers from the effects of extreme heat.
These efforts include regularly conducting effective safety training on heat stress to provide workers with critical information about heat-related hazards on the job, and developing “a variety of heat-related toolkits and other materials to help construction employers target their efforts to prevent heat illness on the jobsite by adopting methods that make the most sense for the type of work they do.”
In a recent letter to the White House Office of Management and Budget (OMB), CISC pushed back on several specific provisions in the proposed rule, echoing previous calls for OSHA to reconsider the need for this regulation.
Acclimation requirements
In addition to requiring employers to develop new safety procedures for working outside, OSHA also seeks to dictate how new and returning workers would have to adjust to working on a warm day. The proposed rule also includes acclimatization requirements for workers not accustomed to heat because they are new to the job or have been away from the job for more than 14 days. On top of that, it specifically calls for gradually increasing new employees’ exposure to heat over time, starting with no more than 20 percent of a normal work shift exposure on the first day and ramping up to 80 percent by the fourth day of work.
The acclimatization aspect is a major concern for construction groups. How are employers to build a process that would schedule and keep accurate records of employee heat exposure during daily operations? According to CISC, a prescriptive, one-size-fits-all approach to addressing extreme heat in the workplace is not workable in the construction industry. Heat affects each worksite (and workers on that site) differently, based on a combination of factors that are too nuanced to effectively address with a prescriptive set of requirements.
In addition, “acclimatization schedules should not prevent already acclimatized workers from working,” according to CISC. “Construction workers are far more likely to be naturally acclimated to their work environment before starting a job than other workers, due to the transient nature of the construction industry workforce with workers who move from job to job seamlessly.” Industry is suggesting acclimatization schedules provide more flexibility and can be tailored to individual worksites.
Further, OSHA’s proposal would require employers to develop procedures for responding to employees experiencing symptoms of heat-related illness:
• Relieve employees from duty and ensure that they are “not left alone”
• Monitor affected employees
• Provide onsite first aid or medical attention
• Provide means to lower the body temperature of affected employees
• Take immediate action to reduce body temperature and contact emergency medical services in cases of a “heat emergency”
Symptoms of heat illness include “headache, nausea, weakness, dizziness, elevated body temperature, muscle cramps, and muscle pain or spasms.” A “heat emergency” would be defined as when “the physiological manifestations of a heat-related illness” require emergency response activities, when excessive body temperatures are accompanied by loss of consciousness” or disorientation.
These terms are broad and vague, and they place entirely too much responsibility on frontline supervisors and other field employees. For example, supervisors would be required to determine when symptoms only require monitoring or are serious enough to call on emergency medical services. The proposal also fails to define when body temperatures are to be considered “excessive” and what the employer must do to reduce body temperature.
An important question asked by employer-side organizations is what liability will employers absorb when the supervisor makes the wrong call and does not properly treat symptoms that may be complicated by personal medical conditions?
Training requirements
Training will have to be provided to all employees covered by the HIIPP. Under the proposed rule, required training would include a wide range of information, including all provisions in the HIIPP, risk factors for heat stress, the importance of taking rest breaks and drinking water, how to recognize signs and symptoms of heat-related illness and which ones require immediate action, and prohibiting retaliation for taking breaks. Supervisors would receive additional training on how to monitor temperature and what to do when an employee shows signs of heat illness.
OSHA’s proposal would require retraining and a review of the HIIPP whenever a recordable heat-related illness occurs, and this is troubling. The ability of an employee to work in the heat is subjective, and depends on many factors, including age, physical fitness, personal medical conditions, and outside factors. Federal authorities outside of OSHA seem to acknowledge that even if an employer implements a perfect heat illness program, signs and symptoms of heat illness may inevitably impact certain employees. OSHA’s failure to account for these factors in the proposal are already being addressed by the regulated community.
According to CISC, training requirements related to heat factors should “emphasize employees’ personal risk factors, and how different behaviors can affect an employee when working in high heat conditions.
“These could include age, overall health, whether they have recently consumed caffeinated drinks or alcoholic beverages, medications and a host of other factors. OSHA should not require employers to collect information about these personal risk factors. Instead, OSHA’s proposal should place the responsibility on employees to assess their personal conditions, as has been done in other State-OSHA plans.”
While the proposed rule applies to all employers with a “reasonable expectation” of employee exposure to certain heat thresholds, it provides for some limited exceptions:
• Short-duration employee exposures to heat of 15 minutes or less in any 60-minute period
• Organizations whose primary function is firefighting or other emergency response activities
• Work activities performed in indoor work areas or vehicles where air-conditioning consistently keeps the ambient temperature below 80 degrees
• Telework employees
• Sedentary work activities in indoor work areas that only involve a combination of sitting, occasional standing or brief periods of walking, and the occasional lifting of objects weighing less than 10 pounds
Clarification
The proposed rule also requires employers to allow and “encourage employees to take paid rest breaks,” which adds more uncertainty. Other questions about how the new rule might apply to temporary workers who are already accustomed to hot working conditions from a previous job, such as in the construction industry, are only increasing.
Rest-break requirements also require flexibility. Strict mandatory rest breaks could jeopardize the actual work being performed and undermine the safety of the worksite. It is not always practicable to pull workers away from a construction task once it has begun, as doing so could jeopardize the task itself.
Mandatory and prescriptive breaks can jeopardize employee safety when there may not be enough workers to safely perform a task. They can also discourage workers from taking breaks when needed, as they may feel the need to continue working until the next designated break, presenting a dangerous scenario for working in warm/hot weather. Instead, employers should encourage their employees to take rest breaks as needed to prevent overheating, as reflected in most construction operations today.
Water requirements should not be overly prescriptive, either. According to CISC, “given the size and the number of workers on each construction site, between the general contractor employees and each subcontractor, it would be virtually impossible to keep track of each worker’s water consumption. Instead, water availability requirements must be flexible and allow construction employers to replenish water supplies in the manner that ensures employees will have an ample supply of water or other acceptable beverages.”
Obviously, costs are expected to be exorbitant, especially in cases where employers are forced to hire additional workers to monitor a complete work crew for threats from heat exposure. Therefore, the employer community is justifiably concerned that OSHA would propose mandating this type of system.
CISC and other industry organization have encouraged OSHA to consider the need for a separate heat standard for the construction industry. CISC has “grave concerns with a standard that aims to cover all affected industries with a one-size-fits-all approach to heat injury and illness. Construction work is simply too distinct from other general industries to be covered by the same rule.” Construction sites change continuously from when they commence to when they wrap up.
Unlike in many general industries, multi-employer worksites are widespread throughout the construction industry, and it would not be appropriate to put general contractors in charge of heat safety for subcontractors working onsite. Subcontractors are skilled professionals who are usually best-equipped to perform their work safely and have a better understanding of the heat-related hazards they may face. According to CISC, “while multi-employer concerns may not impact other general industry employers, OSHA should not place multi-employer obligations on construction employers under a heat standard.”
Stakeholders have until Dec. 30, 2024, to file comments on the proposal. Once comments are filed, OSHA will review and summarize them in a final rule. OSHA and the White House are eager to finalize the rule, reflected by the fact that OMB completed its review in only three weeks.
The fate of the final standard may be tied to the results of the upcoming presidential election. If OSHA finalizes the standard during President Biden’s term and Vice President Kamala Harris ultimately loses her election bid, the standard will be vulnerable to a congressional challenge under the Congressional Review Act (CRA). Importantly, a successful CRA challenge would prevent OSHA from issuing a “substantially similar” rule or regulation in the future on the topic of heat exposure. If a final standard is not issued and Harris is not elected, then a Republican administration may abandon the rulemaking altogether.
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