OSHA Extends Comment Deadline on Heat-Injury Ruling

On December 2, 2021, the Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) announced the extension of its comment period for the Advance Notice of Proposed Rulemaking (ANPRM) on Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings to January 26, 2022. This 60-day extension came after a request from the Coalition for Workplace Safety (CWS), a group of trade associations, including TCIA, which cited the length of the initial comment period as insufficient for stakeholders to conduct the “resource-intensive research and data collection” necessary to provide the agency with “comprehensive, accurate and meaningful input.”

Background and context

OSHA first published the ANPRM to consider a heat-specific workplace standard on October 27, 2021, stating that a standard specific to heat-related injury and illness prevention “would more clearly set forth employer obligations and the measures necessary to more effectively protect employees from hazardous heat.” OSHA further explained that the purpose of the ANPRM is to seek information, data and examples from interested stakeholders on the following topics:

Occupational illnesses, injuries and fatalities due to hazardous heat, including their under-reporting and magnitude across geographic regions or among various industries, occupations, job tasks or businesses of various sizes;

  • Determinants of hazardous occupational heat exposure and heat-related illness in the workplace;
  • Inequalities in exposures and outcomes among workers of color and low-wage earners;
  • Structure of work and work arrangements affected by hazardous heat;
  • Existing efforts on heat-illness prevention, including by OSHA, states, employers or other industry associations;
  • Heat-illness-prevention plans and programs;
  • Engineering controls, administrative controls and personal protective equipment;
  • Acclimatization;
  • Physiologic and exposure monitoring;
  • Planning and responding to heat-illness emergencies;
  • Worker training and engagement;
  • Costs, economic impacts and benefits; and
  • Impacts of climate change on hazardous heat exposure for outdoor and indoor work settings.

The ANPRM is one of several of the Biden-Harris administration’s and DOL’s recent initiatives to protect Americans from hazards associated with extreme heat exposure in both indoor and outdoor worksites. On September 1, 2021, OSHA announced plans to expand their heat-illness-enforcement initiatives through work-site inspections and investigations. Several weeks later, the agency announced its intent to establish a National Emphasis Program on outdoor heat-hazard cases, which will target all work sites under Federal OSHA jurisdiction through outreach, consultation services and training in 2022.

These efforts will be supported by the formation of a National Advisory Committee on Occupational Safety and Health (NACOSH) Heat Injury and Illness Prevention work group, which will convene to “provide better understanding of challenges and to identify and share best practices to protect workers.”

As part of their Heat Illness Prevention Campaign, OSHA also has prioritized outreach to stakeholder groups representing employers in industries where workers are exposed to heat. In a June 22, 2021, NACOSH meeting, the agency announced plans for additional outreach to TCIA and related organizations.

Expectations for the ANPRM process

If you are interested in providing your own feedback to OSHA, please follow the instructions in the Federal e-Rulemaking Portal.

OSHA will review and analyze all material in the public rulemaking record to determine if and how it should proceed with developing a heat-illness standard following the comment period. Federal OSHA does not currently have a heat- or stress-illness-specific standard; however, the General Duty Clause (GDC) of the Occupational Safety and Health Act of 1970 requires each employer to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

At the state level, Minnesota, Washington and California are the only states to have implemented individual OSHA-approved heat-illness standards, with Oregon having adopted an emergency rule in July 2021. Under California law, employers are required to train all employees and supervisors about heat illness as part of their mandated “effective heat-illness-
prevention plan” that also must include providing adequate fresh water, access to shade and paid rest breaks and recovery periods once temperatures reach 80 F. Although it is still unclear whether similar requirements would be adopted at the federal level, California’s standard may prove impactful in the event of the agency pursuing a permanent standard, given that Doug Parker, former head of California’s Division of OSHA (Cal/OSHA), now leads Federal OSHA.

Lara Dunkelberg is a legislative assistant with Ulman Public Policy, TCIA’s Washington, D.C.-based advocacy and lobbying partner.

TCIA will continue to keep its members aware of the latest developments on a potential heat-specific workplace standard. If you would like to have input on TCIA’s comments, or have questions about a potential OSHA standard, please reach out to Aiden O’Brien, TCIA’s advocacy & standards manager, at aobrien@tcia.org by January 7, 2022.

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