OSHA Targets Leading Cause of Weather-Related Injuries with Proposed Heat Illness Regulation BY HAO NGUYEN ESQ. SENIOR PRODUCT AND REGULATORY COUNSEL, COMPLYAUTO According to the Department of Health and Human Services, over 2,300 total heat-related deaths occurred in 2023, which is a number that has been steadily growing. In order to tackle this issue head-on, OSHA recently issued a Notice of Proposed Rulemaking (NPRM) for rules regarding heat illness prevention in outdoor and indoor settings. To understand the complicated nature of heat illness at the federal level, we will need a short history lesson on how we got here. TREATING HEAT ILLNESS: OSHA’S GENERAL DUTY CLAUSE (GDC) It is hard to believe that prior to the NPRM, there were no specific federal regulations specifically targeting heat illness, but that does not mean that heat-related injuries and death are not on OSHA’s radar. OSHA has been using the General Duty Clause (GDC) with surgical precision for situations like these. This GDC power is much like Section 5 of the FTC Act in that it is a broad grant of authority to target businesses/employers who subject their employees to unsafe working conditions. Specifically, the GDC states that each employer: “... shall furnish to each of his employees … a place of employment … [that is] free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” The GDC, and its broad interpretation, has been both OSHA’s guide and guillotine for almost 55 years and has allowed it to penalize employers across multiple industries for infractions that jeopardize the health and safety of its employees. Heat illness is no different. Regardless of the presence of a final specific regulation, employers cannot subject their employees to unsafe working conditions, and this includes weather-related protections. OSHA’S FIRST ATTEMPT: THE NATIONAL EMPHASIS PROGRAM (NEP) In 2022, OSHA established the National Emphasis Program (NEP) related to indoor and outdoor heat-related illnesses and injuries. Viewed as a precursor for legislation by some, NEPs are a result of OSHA’s aggregation of copious amounts of injury and illness data and National Institute for Occupational Safety and Health (NIOSH) reports to determine whether more emphasis is needed to be placed on a particular hazard. Including the heat hazard, there are 13 NEPs that cover many unrelated topics spanning from COVID-19 and crystalline silica to combustible dust and lead. OSHA found that the growing number of preventable heat-related injuries and illnesses necessitated an NEP. Since the heat NEP’s inception, OSHA has used it to conduct over 5,000 federal heat-related inspections, and it remains effective until April 2025. If OSHA were to pass its heat illness prevention regulations, then it would become effective after this date. “NEW RULE, WHO ‘DIS?” (Leave it up to me to make a callback to a meme that was made popular in 2014, but it was just too good to pass up.) If finalized, the NPRM regulations would require businesses to implement measures throughout their operations to protect their employees from extreme heat in both indoor and outdoor applications. We are still months away, but here is a quick look at what these proposed regulations entail. Application Rather than saying what businesses these regulations apply to, OSHA wrote in the alternative and identified the businesses/ situations in which these regulations do not apply: 1. Work activities for which there is no reasonable expectation of exposure; 2. Short duration employee exposures in any period between 15 minutes and 60 minutes; 3. Emergency response organizations (firefighting, medical services, technical search and rescue, or other specific emergency response activities); 4. Work activities performed in indoor work areas or vehicles where air-conditioning keeps the ambient temperature below 80 degrees Fahrenheit; 5. Telework; and 6. Sedentary work activities in indoor work areas that only involve sitting, occasional standing and walking, and occasional lifting of weights less than 10 pounds. 31 THE GENERATOR
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