The Occupational Safety & Health Administration (OSHA) released an unofficial version of its notice of proposed rulemaking (NPRM) for an indoor and outdoor heat illness prevention rule.
Once the NPRM is published, stakeholders will have a 120-day period to submit public comments to OSHA. This means if the NPRM is published by OSHA in the near future, the comment period will straddle the November 2024 elections.
Announcement of a dedicated rule on heat would allow OSHA to more easily issue citations by placing direct obligations on employers. If (or when) this NPRM is announced as a final rule – and assuming it survives legal challenges – it would not be surprising to see the Mine Safety & Health Administration (MSHA) pick up the ball and attempt its own rulemaking on heat for the mining industry.
1. OSHA will require employers to develop and implement comprehensive, site-specific written heat injury and illness prevention plans (HIIPP):
• The HIIPP will have to include a list of all types of work activities covered by the HIIPP, and all policies and procedures necessary to comply with OSHA’s heat illness rule. It will also have to establish the employer’s chosen heat metric and identify one or more specific heat safety coordinator(s).
• The HIIPP must be reviewed and evaluated at least annually, and whenever a heat-related illness occurs that requires medical treatment beyond first aid or worse.
• Employers must involve non-supervisory employees (and their representatives) in the development, implementation, review and updates to the HIIPP.
2. Acclimatization protocols for new and returning workers:
• For new workers, OSHA has included proposals about the “Rule of 20 percent.” This limits exposure to a gradual increase during their first week on the job (20 percent on day one, 40 percent on day two, and so on.
• For workers returning to work after as few as 14 days away, OSHA proposes a modified gradual exposure schedule. During their first week back, workers would limit exposure to no more than 50 percent on day one, 60 percent on day two and 80 percent on day three.
3. For outdoor work areas, employers will be required to monitor heat conditions by:
• Tracking local heat index forecasts provided by the National Weather Service or other reputable sources, or otherwise measuring temperature and heat index.
4. At indoor work sites, employers will be required to conduct special heat-related hazard assessments to:
• Identify work areas where there is a reasonable expectation employees may be exposed to heat at or above an initial heat trigger set by the rule.
• Develop and implement monitoring plans covering each potential high-heat work area.
5. Requirements at or above the initial heat trigger (a heat index of 80 degrees or a wet bulb globe temperature equal to the National Institute for Occupational Safety & Health (NIOSH) recommended alert limit):
• Provide access to potable drinking water. Water must be placed in locations readily accessible to the employee, suitably cool and of sufficient quantity to provide access to one quart of drinking water per employee per hour.
• Provide sufficient readily accessible break areas to accommodate the number of employees at the workplace.
• Allow for and encourage employees to take paid rest breaks.
• Maintain a means of effective, two-way communication with employees and regularly communicate with employees.
6. Requirements at or above the high heat trigger (a heat index of 90 degrees or a wet bulb globe temperature equal to the NIOSH recommended exposure limit):
• Mandatory 15-minute minimum paid rest breaks at least every two hours.
• Observation for signs and symptoms of heat illness through either a mandatory buddy system, or regular observation by a supervisor or heat safety coordinator (with a ratio of no more than 20 employees per supervisor).
• Hazard alerts
• Signage for excessively high-heat indoor work areas.
Nick Scala is an MSHA/OSHA workplace safety partner at Conn Maciel Carey LLP, and chair of the firm’s National MSHA Practice Group. He can be reached at nscala@connmaciel.com.
Featured photo: Portable Plants Staff