OSHA Begins Rulemaking Process for Federal Hazardous Heat Standard

January 14, 2022
Jill Hyman Kaplan, Esq., and Brandon P. Matsnev, Esq.
MGKF Special Alert - Federal Forecast 2022

This year OSHA is likely to formalize regulations addressing heat conditions for indoor and outdoor workers. On October 27, 2021, OSHA initiated the rulemaking process by publishing an Advanced Notice of Proposed Rulemaking (ANPRM), which describes the problem of hazardous heat in the workplace, identifies key issues and considerations, and solicits questions to help formulate standards.

Historically OSHA has relied on the General Duty Clause (GDC) to cite employers for heat-related issues. Under the GDC employers have a broad duty to provide safe workspaces that are free from recognized hazards that can cause death or serious physical harm to employees. 29 U.S.C. § 654(a)(1). But in the ANPRM, OSHA explains that reliance solely on the GDC to address hazardous heat has been challenging. For one, it does not provide specific thresholds concerning heat, and thus OSHA cannot always prove the existence of a recognized hazard. OSHA has tried to rely on scientific literature to establish proof, but courts have largely rejected this effort, as such literature often supplies vague standards, which in any event do not have the force of law. OSHA has used other tools to prevent heat injury, including an enforcement initiative directing that regional offices increase inspections on hot days, but absent clear standards, OSHA contends it has fallen short.

The ANPRM discusses recognized strategies to reduce occupational heat-related injury and illness. These include engineering controls, such as air conditioning and increased ventilation, and administrative controls, such as reduced workloads or flexible work schedules. OSHA also emphasizes the importance of acclimatization—or gradual rather than sudden exposure to promote a more robust physiological response—as well as employee monitoring, emergency planning, and worker training and engagement. OSHA will likely incorporate some (or all) of these strategies into the final regulations.

California, Minnesota, Oregon, and Washington have already promulgated hazardous heat standards. Though there are similarities among the programs, such as the requirement to provide heat training to employees, they differ in significant ways. For example, California covers only outdoor worksites, whereas Minnesota covers only indoor worksites. Oregon’s program applies when the temperature is 80°F, while Washington’s applies at 89°F. When regulating a new area of worker safety, federal OSHA often considers successes and failures at the state regulatory level—it has shown particular deference to California OSHA. Indeed, the ANPRM solicits input specifically on the effectiveness of preexisting state heat standards.

Employers with higher temperature working conditions should continue to monitor these developments. The comment period for the proposed hazardous heat regulations closes on January 26. If it determines a rule is necessary, OSHA will then publish a Notice of Proposed Rulemaking, for which there will be an additional comment period. Finally, after the close of that comment period, OSHA can publish a final rule.