The Occupational Safety and Health Administration (“OSHA”) recently unveiled a new National Emphasis Program (“NEP”) for outdoor and indoor heat-related hazards. To best protect workers in hot working environments, particularly in a climate of ramped up enforcement, employers are wise to devote considerable attention to understanding heat-related hazards, appreciating OSHA’s planned expansion of heat-related inspections, and preparing workplaces in response to the rollout of the heightened enforcement program. Especially during a summer of record-breaking temperatures, it is never too late for employers to devote energy to protecting employees from heat-related hazards.

The Need for Heat Stress Standards

The stated purpose of the NEP is to “protect employees from heat-related hazards and resulting injuries and illnesses in outdoor and indoor workplaces” and to set forth a “targeted enforcement component,” reiterating OSHA’s “compliance assistance and outreach efforts.” Rather than relying on a more passive or reactive approach, OSHA aims to encourage early intervention by employers to prevent illnesses and deaths during high heat conditions. “High heat conditions,” as described by OSHA, encompass both outdoor work during heat waves and work that takes place indoors near radiant heat sources, such as iron and steel mills.

In discussing the importance of the NEP, OSHA emphasizes that according to the U.S. Department of Labor’s Bureau of Labor Statistics, “between 2015 and 2019, environmental heat cases resulted in an average of 35 fatalities per year and an average of 2,700 cases with days away from work.” The actual number of heat-related fatalities is expected to be even higher due to unreported incidents and “improperly diagnosed” injuries and illnesses. Despite these statistics, no federal heat standard yet exists. In October 2021, OSHA initiated the lengthy rulemaking process by issuing an advance notice of proposed rulemaking on heat injury and illness prevention, which was followed by a public comment period allowing OSHA to gather additional information. This, along with the NEP, illustrates OSHA’s prioritization of heat-stress regulation.

OSHA’s Newest Enforcement Initiative

The NEP’s goal is to reduce exposures to heat-related hazards that result in illnesses and injuries by targeting particular industries and worksites where employees are exposed to heat-related hazards and have not been provided adequate protection. Mitigation strategies, such as providing cool water, rest, cool areas, training, and acclimatization (gradually training the body to tolerate higher levels of heat stress), are key to controlling the health hazards associated with heat exposures. OSHA states that it will accomplish its goal via a combination of enforcement (which includes inspection targeting), outreach to employers, and compliance assistance.

Expanded Inspections

The inspection prong of OSHA’s newest initiative charges compliance safety and health officers (“CSHOs”) conducting heat-related inspections with reviewing OSHA 300 Logs and 301 Incident Reports for any entries indicating heat-related illnesses, reviewing records of heat-related emergency room visits and/or ambulance transport, interviewing workers for symptoms of heat-related illnesses (headache, dizziness, fainting, dehydration, etc.), and determining if the employer has a heat-illness and injury program addressing heat exposure. Per the NEP, employers should expect the following questions to be considered as a part of heat-related inspections:

• Whether there is a written program;

• Whether and how the employer monitors ambient temperatures and levels of work exertion at the worksite;
• Whether there is easily accessible cool water;
• Whether the employer requires additional breaks for hydration;
• Whether there are scheduled rest breaks;
• Whether there is access to a shaded area;
• Whether the employer provides time for acclimatization of new and returning workers;
• Whether a “buddy” system is in place on hot days;
• Whether administrative controls are used (e.g., earlier start times and job rotation) to limit heat exposures; and
• Whether the employer provides training on heat illness signs, how to report signs and symptoms, first aid, how to contact emergency personnel, prevention, and the importance of hydration.

CSHOs who are already investigating for other purposes are asked to open or refer a heat-related inspection whenever they observe hazardous heat conditions, where they see heat-related incidents recorded in the OSHA 300 Logs or 301 Incident Reports, or where a heat-related hazard is brought to the attention of the CSHO. Further, on “heat priority days,” defined as days during which the heat index is expected to be at least 80°F, CSHOs are encouraged to inquire into the presence of any heat-related hazard prevention programs. In a similar vein, programmed inspections are expected to take place on days when a heat warning or advisory for the local area exists. OSHA also encourages follow-up inspections where heat-related fatalities occurred or citations were issued, to confirm implementation of appropriate abatement measures.

Targeted Industries

While heat-related hazards clearly touch on construction and related industries, the OSHA Instruction describing policies and procedures for implementing the NEP narrows its focus on a selection of less obvious non-construction industries as well. These industries include, but are not limited to:

• Cattle Ranching, Crop Production, and Farming;
• Bakeries and Tortilla Manufacturing;
• Petroleum, Coal, Iron, Steel, and Fabricated Metal Manufacturing;
• Motor Vehicle and Aerospace Product Manufacturing;
• Grocery and Related Product Merchant Wholesalers;
• Lawn and Garden Equipment and Supplies;
• Support Activities for Air, Rail, Water, and Road Transportation;
• Postal Service, Couriers and Express Delivery Services;
• Waste Collection, Treatment, and Disposal;
• Skilled Nursing Facilities;
• Automotive Repair and Maintenance;
• Water and Sewage Systems;
• Office Administrative and Business Support Services;
• Investigation and Security Services;
• Educational Support Services;
• Restaurants and Other Eating Places;
• National Security and International Affairs; and
• Employment/Temporary Staffing Services.*

The chosen industries of focus are those OSHA believed to have the highest exposures to heat-related hazards and resulting illnesses and deaths. Businesses within these industries will generally be used for OSHA’s programmed inspection.

*OSHA does acknowledge that the employment/temporary staffing service industry is different than most as heat-illness hazards may occur at a high-hazard host location rather than at the employer’s site itself, so employers in this industry are not automatically included in the targeted list for programmed inspections.

Authority for Heat-Related OSHA Violations

Lacking a federal heat standard, OSHA relies heavily on the General Duty Clause (“GDC”)—Section 5(a)(1) of the Occupational Safety and Health Act. 29 U.S.C. § 654. The NEP states that any proposed citation for a heat-related health hazard shall be issued under the GDC when all elements of a violation have been established, emphasizing that CSHOs should explain the relationship between the workplace operations and exposures and the potential for heat-related illnesses. A sample Alleged Violation Description (“AVD”) for a heat-related illness 5(a)(1) violation is located in the Appendix of the NEP. The sample language highlights the importance of noting with particularity all sources of heat (e.g., environmental temperature measurements and information on any heat-generating equipment) and all workplace conditions or practices that expose employees to a likelihood of heat-related illnesses including specific exertions (e.g., performing heavy roofing work or wearing impermeable protective clothing). The alleged heat-related hazard descriptions should not include the employer’s failure to implement specific abatement measures (e.g., acclimatizing workers to the heat, failure to provide cool drinking water, or training employees on heat stress).

Impact on State Plans

Many states have elected to operate their own OSHA-approved workplace safety and health programs, rather than opting into the federal OSHA program. These state plans are monitored by OSHA and must be at least as effective as OSHA in protecting workers and in preventing work-related injuries, illnesses, and deaths. OSHA encourages, but does not require, state plans to adopt the NEP. However, state plans must submit a notice of intent indicating whether they already have a similar policy in place, intend to adopt new policies and procedures, or do not intend to adopt the Instruction. State plan responses will be published on OSHA’s website.

Current State Law Efforts

On the state law front, only a select few states have passed their own heat stress standards (California, Minnesota, and Washington). Nonetheless, it appears several states intend to make heat hazards a central focus in the coming years. This includes the state of Maryland, which in 2020, passed House Bill 722. The bill tasked the State’s Commissioner of Labor and Industry, in consultation with Maryland’s Occupational Safety and Health Advisory Board, with developing and adopting regulations that require employers to protect employees from heat-related illness caused by heat stress. Those regulations are due by October 1, 2022.

How to Prepare and Comply

To best meet the demands of the NEP, employers should proactively evaluate the presence of heat-related hazards in their workplaces. Written programs should be developed addressing various mitigation strategies as outlined above. Employers can also now take advantage of the OSHA-NIOSH Heat Safety Tool App, which provides information related to the heat index on any given day, along with information regarding symptoms from heat-related exposure. While the future of federal heat-hazard enforcement is not entirely clear, it is apparent that for the foreseeable future, heat stress standards will be a point of emphasis for state and federal regulators, and employers should do what they can to prepare and respond accordingly.

Miles & Stockbridge’s labor and employment attorneys are well versed in navigating compliance with OSHA standards. Should you need any guidance on how to properly prepare for OSHA’s ramped up heat stress enforcement efforts as discussed herein, please reach out to our labor and employment practice group for further assistance.

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