It’s been a hot summer.
The U.S. has faced multiple heat waves. Last Monday was the hottest-ever recorded day on the planet, beating the record set just the day before, AP News reported. For many workers, that has meant laboring in intense climates.
It’s also been a summer full of new developments in politics and regulations.
On July 2, OSHA published a proposed rule, a quickly formed standard — compared to previous rules — in response to rising temperatures. It aims to better protect indoor and outdoor workers in all industries from extreme heat.
But just a few days prior, the Supreme Court overturned the Chevron doctrine, which required federal courts to give deference to federal agencies’ reasonable interpretation of ambiguous statutes. This development led many to wonder whether OSHA could even enforce a heat rule, should it be challenged. Nonetheless, SCOTUS declined to hear a challenge to OSHA’s authority on July 2, USA Today reported.
Meanwhile, this fall’s presidential election could call into question the proposed heat rule’s adoption as well. Should former President Donald Trump win, he could potentially stop the standard when his own Cabinet takes over, multiple sources told Construction Dive.
Although these developments seem like they could be a deterrent to the new standard going into effect, legal experts say it still matters, regardless of whether it gets finalized.
“I think there are plenty of good, solid, legal reasons that this will never take effect, but my take is so what?” said Phillip Russell, OSHA and employment lawyer, litigator and advisor for Washington, D.C.-based firm Ogletree Deakins. “My perspective on this is that the content of this proposed standard has useful information for employers right now.”
Regardless of what happens with the OSHA heat standard, the text of it is a resource that contractors can use to bolster their safety practices. The best action now, lawyers told Construction Dive, is for construction pros to familiarize themselves with the rule, write or update their own company heat safety plan based on the proposal and follow it.
What’s in the proposal?
Under the proposed rule, employers must have a Heat Injury and Illness Prevention Plan. That plan would go into effect for a heat trigger — when temperatures reach 80 degrees F or a wet bulb globe temperature equal to the NIOSH Recommended Alert Limit. The rule also calls for more actions to protect workers for a high heat trigger — when temperatures reach 90 degrees or hotter.
Requirements within that HIIPP include initial training for workers, access to water and shade, a designated heat safety coordinator and clear communication of the plan in every language spoken on the job.
In addition, the rule says that new workers or workers who are unaccustomed to the heat must have time to acclimatize to high temperatures. That’s one reason the rule will likely face challenges, said Will Burton, Greensboro, North Carolina-based partner in Philadelphia-headquartered law firm Fox Rothschild.
Employers could call into question the science behind acclimatization, along with the temperature triggers, Russell also noted.
In addition, one section of the rule states, “The employer must allow and encourage employees to take paid rest breaks … if needed to prevent overheating.” Russell called that “problematic from a legal perspective.”
There’s also a question, Russell noted, of whether heat falls under OSHA’s purview of ensuring that employers provide a safe workplace or if it is a broader health issue.
Even still, the rule is an valuable resource, lawyers say.
“I think it would behoove any employer to go ahead and get into compliance with whatever the proposed rule is,”said Ashley Brightwell, partner in Atlanta-based Alston & Bird’s labor and employment group.
Compliance with heat
For over two years, OSHA has had a National Emphasis Program in place to reinforce its “Water, Rest, Shade” guidance for workers in high temperatures. Under the agency’s general duties clause, employers are required to provide workers with an environment free from hazards, and to this point, heat has fallen under that.
That meant a lack of specificity, Brightwell said. Sure, employers know they need to keep workers safe from the heat. But precisely how OSHA expects them to do so, hasn’t been crystal clear.
“In many ways [the proposed rule] has been a positive development,” she said. “There has been all kinds of confusion about what is required and discrepancies in when OSHA will cite and what they will cite for.”
Brightwell called the proposed rule “a good road map” for employers to use in crafting their own heat safety plan. At the very least, she said, companies have a better sense regarding what OSHA expects of them when it comes to protecting workers from heat.
Burton called out that the agency published the rule in a different way than usual.
“At this point OSHA has taken in essence an unusual step of publishing a preview of a rule before it is published in the Federal Register,” he noted. “OSHA already has some level of authority to regulate [heat] under the general duty clause. It would be wise to take appropriate steps on some level to have heat-related considerations part of your overall safety plan, even if the rule is never finalized.”
Burton noted that soaring summer temperatures aren’t going to just go away, and neither will OSHA, which will likely still use the general duties clause if the proposal isn’t adopted.
Russell, whose office is in Florida, said he has active heat inspections right now. The 80 degree temperature threshold would mean a large portion of work days in the state would fall into the HIIPP zone.
“I’m already seeing these questions from compliance officers,” Russell said of his clients. “How this is useful is that employers that want to understand how OSHA is going to handle heat inspections currently, they should look at the NEP and the proposed standard.”
