Hot Over Heat Illness

As the COVID-19 pandemic slowly fades, the Occupational Safety and Health Administration (OSHA) is resuming more frequent inspections. A key topic this time – heat illness prevention in both outdoor and indoor settings.

Heat is the leading weather-related killer in the workplace, and it is becoming more dangerous with climate change, as 18 of the last 19 years were the hottest on record. Excessive heat can cause heat stroke and even death if not treated properly.

Some states, including California, Washington, Oregon, and Minnesota, have their own heat illness standards. Until now, however, OSHA did not have a standard specifically addressing heat illness.

The agency has started a rulemaking process to create a heat illness standard, which is expected to take several years before it is ready to go into effect.

OSHA has addressed heat hazards in the past through a prevention campaign, published safety and health topics, interpretation letters, and its mobile app. When it came to enforcement, however, OSHA mostly did that under its General Duty clause.

Table 1 shows what temperatures OSHA considers risky. It isn’t necessarily extremely hot. For unacclimatized workers, anything over 77 degrees is considered high risk for heat illness with strenuous work.

OSHA has a mixed record on heat illness citations under the General Duty clause. In one case dating from 2014, the Occupational Safety and Health Review Commission (OSHRC) upheld a contested willful citation against the U.S. Postal Service. The citation said the employer:

• Failed to implement any heat illness program despite awareness of the dangers of heat illness.

• Failed to take corrective action after several employees suffered from heat illness.

• Failed to acclimatize an employee who had returned after a leave.

In another case in 2019, OSHRC vacated a heat illness citation against a roofing company where OSHA failed to show a heat hazard existed despite an employee death, that there was a feasible means of abatement, or that a more prudent employer would have given different instructions.

While it sometimes is more difficult for OSHA to prevail under the General Duty clause, it is still serious. The agency has the capability of issuing a willful c citation under General Duty, the most serious type of violation in terms of the size of fines or the possibility of criminal prosecution.

Up From the States

Table 2 on p. 17 provides an overview of state plan rules on heat illness in four states that have them. Each state plan rule is slightly different. Minnesota has rules for minimum temperatures, as well as maximum. Oregon and Washington have special requirements when the National Weather Service declares a heat warning such as extra breaks and water availability.

California was the first state to develop a heat illness rule. Doug Parker, who now is the head of federal OSHA, took part in rulemaking in California when he headed the state OSHA. As a result, there’s a good chance that the Cal/OSHA rule will serve as a model for a federal standard. The state heat illness standard currently is the second most cited Cal/OSHA standard.

Cal/OSHA’s existing outdoor heat illness rule requirements include:

• Develop and implement written procedures.

• Train employees and supervisors in heat illness prevention.

• Supply enough water for workers to drink at least 1 quart per hour.

• Provide access to shade and encourage employees to take cooldown recovery breaks in shade for at least five minutes.

• Comply with additional requirements in high heat, 95 degrees F or above.

National Emphasis Program

While a national standard is in development, OSHA on April 8, 2022 instituted a heat illness National Emphasis Program (NEP). This will be in effect for three years and could be extended. It applies to both indoor and outdoor spaces and includes general industry, construction, maritime, and agriculture. Each OSHA region is expected to have a fiscal year goal of increasing heat inspections by 100% above a baseline of the average of fiscal years 2017 and 2021. Violations will be cited.

Under the NEP, priority is given to fatality inspections, then to other unprogrammed inspections such as complaints and referrals. Followup inspections from worksites previously inspected for heat-related hazards will be included.

State plans are strongly encouraged to adopt the NEP.

Importantly, when OSHA is performing an inspection for heat illness hazards, if the inspector spots possible hazards in areas unrelated to heat illness, the inspection can be expanded to include those other areas.

From April 8 through Aug. 8, OSHA has conducted 889 inspections under the NEP. So far, these include:

• 49 related to fatalities and/or hospitalizations.

• 359 related to complaints.

• 297 programmed inspections under the NEP.

• 592 unprogrammed, inspections for other reasons extended to heat-related issues.

In addition, OSHA will conduct programmed inspections in more than 70 high-risk industries, including “support activities for crop production” – grain elevators and feed mills. The NEP establishes “heat priority days” for inspections whenever the heat index is expected to be 80 degrees F.

During those days, OSHA will initiate compliance assistance in targeted high-risk industries, including grain and feed. During inspections, OSHA will inquire about the existence of any heat-related hazard prevention programs.

OSHA also will continue to inspect any heat-related fatality or catastrophe, complaint, or referral regardless of whether the worksite falls within a targeted industry under the NEP. OSHA field staff will engage in proactive outreach and technical or compliance assistance.

During inspections for other purposes, inspectors will open a heat-related inspection for any of these reasons:

• Hazardous heat conditions observed.

• Heat illnesses recorded in the OSHA logs.

• When an employee brings a heat-related hazard to the attention of the inspector.

Inspectors also will look for employees or temporary workers being exposed to high temperature conditions without adequate training, acclimatization, or access to water, rest, and shade.

Inspections and Citations

This is what you can expect during a heat NEP inspection:

• A review of OSHA 300 logs and 301 incident reports for any entries indicating heat-related illnesses.

• A review of any records of heat-related emergency room visits and/or ambulance transport, even if hospitalizations did not occur.

• Interviews with workers for symptoms of headache, dizziness, fainting, dehydration, or other conditions that may indicate heat-related illnesses. These include both new employees and any employees who recently have returned to work. c

The inspector will determine if the employer has a heat illness and injury program addressing heat exposure:

• Is there a written program?

• How does the employer monitor ambient temperature and levels of work exertion at the worksite?

• Is there unlimited cool water that is easily accessible to the employees?

• Does the employer require additional breaks for hydration?

• Are there scheduled rest breaks?

• Is there access to a shaded area?

• Does the employer provide time for acclimatization of new and returning employees?

• Is a buddy system in place on hot days?

• Are administrative controls such as earlier start times, employee rotation, and job rotation used to limit heat exposures?

• Does the employer provide training on heat illness signs, how to report signs and symptoms, first aid, how to contact emergency personnel, prevention, and the importance of hydration?

When it comes to citations, in the absence of a national heat illness standard, employers most likely could expect to be cited under the General Duty clause requiring the employer to provide an overall safe work environment for employees. Citations also might be made under:

• Personal protective equipment (PPE).

• Sanitation (potable water).

• Medical services and first aid.

• Recordkeeping.

OSHA can be expected to issue many General Duty clause citations during the NEP but only enforce some of them. These citations will undergo extensive review before they are issued. Inspectors are being told to issue citations expeditiously to encourage employers to abate hazards promptly.

Many employers are likely to try to settle quickly and do hazard abatement rather than take on the expense of litigation.

Rulemaking Process

OSHA on Oct. 21, 2021 issued an Advance Notice of Rulemaking covering indoor and outdoor work settings, comments were due Jan. 26, 2022. A public stakeholder meeting was held May 3.

The National Advisory Committee on Occupational Safety and Health (NACOSH) has been meeting throughout this year to draw up a proposed rule. The main components of this rule that OSHA appears to be contemplating:

• Written heat illness prevention programs.

• Engineering controls such as air conditioning, shade tents, and cooling rooms.

• Administrative controls such as changes to workload and schedule, work-rest cycles, and self-pacing.

• Potable water, shaded break areas, and required cooldown rest breaks.

• Acclimatization.

• Training for employees and supervisors.

• Physiological, medical, and exposure monitoring and/or notification.

• Emergency response plans.

Ed Zdrojewski, editor