OSHA heat protection rule lags while record temperatures rise
Federal OSHA heat rule proposal not due until October
Confronted by record-high temperatures stretching from the Pacific Northwest across the U.S., federal OSHA has been relying on a 51-year-old statute to compel employers to protect workers from being felled by the heat.
OSHA hasn’t promulgated a heat standard, though a Heat Illness Prevention in Outdoor and Indoor Work Settings standard is in the early pre-rule stage. A proposed rule may not come until October – and final rules most often take years to complete.
“The reality is that it takes OSHA decades to issue a standard and when they have to cross administrations, everything dies,” said Berkowitz, now the worker health and safety program director for the National Employment Law Project. “With the OSHA Biden took over, the agency is completely depleted with its staff and they have to rebuild the agency,” she said.
In the meantime, OSHA uses the General Duty Clause for enforcement related to heat illness. Part of the agency’s original 1970 enabling legislation, the clause requires an employer to furnish to its 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 to his employees…”
Just a few states—including Washington, California, and Minnesota—have rules on the books addressing the safety of employees working in record heat.
Washington releases new heat rules to increase protections for outdoor workers
In a summer of searing temperatures, the state Department of Labor and Industries released an emergency rule in July to provide farmworkers and other outdoor workers with additional protection from heat-related illnesses.
The rule, which went into effect July 13, requires employers to offer shade or other means for employees to cool down when temperatures reach 100 degrees, as well as rest periods of at least 10 minutes every two hours.
The measure, combined with existing rules, also will require employers to provide cool drinking water once temperatures reach 89 degrees, and allow employees to take additional paid rest when needed, to prevent overheating.
The new rule expands upon rules put in place annually from May to June that require workers get access to at least 1 quart of drinking water per hour, an outdoor heat exposure safety program, and that employers give appropriate response to workers with heat-related illnesses.
Oregon OSHA adopts emergency heat protection rules
On July 8, Oregon’s Occupational Safety and Health Administration (Oregon OSHA) adopted emergency heat-illness prevention rules to establish workplace heat safety requirements that apply when temperatures in a work area reach or exceed 80 degrees Fahrenheit. The rules are effective immediately.
The emergency standard applies to work performed in both indoor and outdoor environments when the temperature in the work area is at or above 80 degrees Fahrenheit. Additional rules apply when the temperature breaches 90 degrees Fahrenheit.
Under the emergency standard, when employees are exposed to a work area temperature at or above 80 degrees, the employer must provide a shade area meeting certain specifications or must provide alternative cooling measures where providing access to shade is not safe or feasible. Employers must additionally provide employees with access to an adequate supply of drinking water to ensure that each employee may consume 32 ounces of water per hour.
By Aug. 1, employers must provide training to all employees who can reasonably be anticipated to be exposed to temperatures in the work area at or above 80 degrees.
When temperatures in the work area exceed 90 degrees Fahrenheit, employers must implement additional practices. Employers must maintain effective communication between employees at the worksite and supervisors; ensure employees are observed and monitored for signs and symptoms of heat illness (by providing means of regular communication to employees working alone, establishing a mandatory buddy system or implementing an equally effective system of observation or communication); designate at least one employee per worksite as responsible and authorized to call for emergency medical services; and ensure that each employee takes a 10-minute rest in the shade at least every two hours. Finally, employers whose workers may be exposed to temperatures in excess of 90 degrees Fahrenheit in the work area must develop and implement effective “acclimatization” practices.
OSHA revises COVID-19 National Emphasis Program; updates Interim Enforcement Response Plan
OSHA has revised its National Emphasis Program (NEP) for COVID-19. The agency launched the NEP on March 12, 2021, to focus on companies that put the largest number of workers at serious risk of contracting the coronavirus, and on employers that engage in retaliation against employees who complain about unsafe or unhealthful conditions or exercise other rights under the Occupational Safety and Health Act.
Based on an evaluation of inspection and illness data, the revised NEP adjusts the targeted industries to those most at risk for COVID-19 exposure, but still includes healthcare and non-healthcare, such as meat and poultry processing. The revised NEP also removes an appendix that provided a list of Secondary Target Industries for the former COVID-19 NEP. For inspections in healthcare, the revised NEP refers compliance safety and health officers (CSHOs) to the new directive, Inspection Procedures for the COVID-19 Emergency Temporary Standard, issued on June 28, 2021.
Inspections in non-healthcare establishments will follow procedures outlined in the Updated Interim Enforcement Response Plan published July 7, 2021. The updated interim enforcement response plan (IERP) replaces the memorandum dated March 12, 2021. Updates in the July 2021 IERP include:
- Enforcing protections for workers in non-healthcare industries who are unvaccinated or not fully vaccinated;
- Where respirator supplies and services are readily available, OSHA will stop exercising enforcement discretion for temporary noncompliance with the Respiratory Protection standard based on employers’ claims of supply shortages due to the COVID-19 pandemic;
- OSHA will no longer exercise enforcement discretion for the same requirements in other health standards, where full compliance may have been difficult for some non-healthcare employers due to the COVID-19 pandemic;
- Updated instructions and guidance for OSHA area offices and CSHOs for handling COVID-19-related complaints, referrals and severe illness reports;
The goals of the IERP are to identify exposures to COVID-19 hazards, ensure appropriate control measures are implemented, and address violations of OSHA standards (other than the ETS) and the General Duty Clause. The updated IERP will remain in effect until further notice and is intended to be time-limited to the current COVID-19 public health crisis.
After six worker deaths at Georgia chicken plant, OSHA issues $1 million in fines
The new regime at OSHA continues to ramp up enforcement and penalties, as expected in most Democratic administrations.
A North Georgia chicken plant and its associated companies face $1 million in fines and scores of citations from the Biden administration over the deaths of six workers and injuries of a dozen in a nitrogen accident in January.
OSHA announced 59 citations and the fines against Foundation Food Group, which runs the Gainesville plant, along with two other associated companies: Messer LLC – a nitrogen gas company, and FS Group Inc, a food processing equipment maker.
“Make no mistake, this was an entirely preventable tragedy,” Labor Secretary Marty Walsh told reporters in an Atlanta news conference on Friday.
OSHA’s investigation found that the companies failed to implement needed safety protocols to prevent the leak, the workers were not taught about the dangers of nitrogen, and they lacked the training and equipment to save lives.
Foundation Food Group, which also runs three other plants in north Georgia, posted on its website, “As our community continues to heal, we extend our continued sympathies and prayers to the families and friends of those lost.”
New York issues airborne infectious disease exposure prevention standard
The New York State Department of Labor (DOL) published the Airborne Infectious Disease Exposure Prevention Standard on July 6 as required by the New York Health and Essential Rights Act (HERO Act) as well as a template compliant safety plan, according to JD Supra. By August 5, 2021, employers must have either adopted an applicable template plan or established an alternative plan that meets the standard’s minimum requirements. Employers must make available and communicate the existence and contents of their plan to employees by September 4, 2021, but they do not need to actually implement the safety controls in the plan until the New York Department of Health declares an outbreak of an infectious disease, which has not happened yet.
In addition to the general template plan, the DOL published template industry-specific plans for the following industries: agriculture, construction, delivery services, domestic workers, emergency response, food services, manufacturing/industry, personal services, private education, private transportation, and retail. To date, there is no office-specific workplace template industry plan.
Employers must do all of the following:
- Conduct Health Screenings/Exclusion of Symptomatic Employees
- Provide Face Coverings and Personal Protective Equipment
- Enforce 6-feet Physical Distancing
- Provide Hand Hygiene Facilities
- Implement Cleaning and Disinfection plan
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