Ballard Spahr LLP

On September 20, 2021, the Biden Administration announced a multi-agency initiative to protect employees from excessive workplace heat exposure.  The Administration acknowledged its public health concern arising from heat waves experienced this summer and what it has identified as a systemic threat to workers from exposure to high temperatures – indoors and outdoors – while doing their jobs.

The White House previewed that the Occupational Safety and Health Administration (OSHA) will publish an advanced notice of proposed rulemaking in the Federal Register next month addressing employers’ obligations to protect workers from injuries cause by heat exposure.  We expect that OSHA’s rules will  focus on employers’ duties to identify and mitigate heat risks, not only in the agriculture and construction industries, but also in industries where workers are employed indoors but not in climate-controlled environments.

Outside of OSHA’s “general duty clause”, the federal government currently does not have a federal worker safety rule in place related to extreme heat exposure in the workplace.  OSHA has, however, issued guidance on working in outdoor and indoor heat environments, available here.  Certain states and localities have also issued heat regulations.

In addition to the rulemaking, OSHA is expected to launch an initiative to conduct planned and surprise workplace inspections on days where temperatures exceed 80 degrees Fahrenheit.  Employers who fail to provide workers with adequate heat mitigation measures, such as water, breaks, proper clothing, and shade could face OSHA citations and accompanying fines.

Employers with workers who work outdoors, or do their jobs indoors where temperatures can become excessive, should take this opportunity to examine their safety rules and protocols to ensure that their workplaces provide for safe operations in the heat.  Employers should also incorporate heat mitigation and cautionary training to employees – both line workers and supervisors – about how to avoid injury and risk in high heat conditions.  In addition, employers should also watch for updates from OSHA and state and local agencies that enforce workplace safety to stay current with new rules and the likelihood of workplace inspections.  Finally, employers should have designated representatives and, in some cases, legal counsel ready to respond and interact with the inspectors when OSHA comes knocking with an inspection, whether that inspection was triggered by a complaint, a new rule, or an industry-wide government safety initiative.

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