October 2021 Federal and State OSHA News

OSHA issues heat illness enforcement guidance

On September 20, 2021, OSHA issued an updated heat illness enforcement initiative to guide the agency’s enforcement of heat illness inspections and to inform employers what is expected of them from a heat illness prevention standpoint.

The initiative prioritizes inspections of work activities on days when the heat index exceeds 80℉, On these days, OSHA Area Directors will dedicate additional resources in responding to heat-related complaints and expand the scope of programmed and unprogrammed inspections to address heat-related hazards. Enforcement will target specific industries, including industries that may be primarily indoors or in shaded work environments. Many of these expectations appear to be modeled after Cal/OSHA’s heat illness standard.

Targeted industries include Commercial Construction, Landscaping, Manufacturing, Waste Management, Transportation, and Warehousing. OSHA’s proposed alleged violation description for heat illness citations addresses indoor heat exposure, including sources of heat such as boilers, furnaces, and engines. It is expected that OSHA will increasingly target indoor workplaces with these inspections.

 

OSHA begins long journey to issue heat illness standard

OSHA has taken the very early step in a rulemaking process to develop a workplace heat standard, the White House announced in September. OSHA, seldom the object of White House announcements, has been top of mind in the administration since President Joe Biden took office.

OSHA will issue an Advance Notice of Proposed Rulemaking (ANPRM) on heat illness prevention in outdoor and indoor work settings, to be published in October in the Federal Register. The White House called the action “a significant step toward a federal heat standard to ensure protections in workplaces across the country.” The ANPRM will initiate a comment period allowing for OSHA to gather diverse perspectives and technical expertise on topics including heat stress thresholds, heat acclimatization planning, and exposure monitoring.

On another front, OSHA is working to formalize a National Emphasis Program (NEP) on heat hazard cases, which will target high-risk industries and focus OSHA resources and staff time on heat inspections. Establishing a new NEP requires extensive data review, which OSHA is working to complete in order for the NEP to take effect before the Summer 2022 heat season. OSHA will build on the existing Regional Emphasis Program for Heat Illnesses in Region VI, which covers Arkansas, Louisiana, New Mexico, Oklahoma, and Texas.

And finally, OSHA is forming a heat work group to engage stakeholders and inform ongoing efforts. OSHA’s National Advisory Committee on Occupational Safety and Health (NACOSH) will set up a Heat Illness Prevention Work Group to provide better understanding of challenges and best practices in protecting workers from heat hazards. This group will include three members of the full NACOSH—a public representative, labor representative, and management representative—as well as new members from a range of sectors and industries. OSHA will convene periodic meetings of the work group to provide diverse perspectives on topics including identification, monitoring, and response to workplace heat hazards; heat emergency response plans; and worker training and engagement.

 

OSHA serious violations to increase to $70,000?

A Congressional committee has approved maximum penalties of $70,000 for serious items and $700,000 for repeated, willful, and failure-to-abate items for violations of OSHA standards.

The move would mean more than a fivefold increase of maximum “willful,” “repeated,” and “failure-to-abate” violations from $136,532. Minimum penalty amounts for such infractions would increase from today’s $9,753 to $50,000. “Serious” violations would increase from a current maximum of $13,653 to $70,000.

The penalty increases mirror provisions in the “Protecting America’s Workers Act,” a measure that has been proposed in recent Congresses but has never passed. The House of Representatives is expected to vote on the new measure and send it to the Senate, which could enact the measure with a simple majority vote.

In its last major penalty increase, Congress approved an increase of maximum penalties from $7,000 per “serious” item to $12,471 on June 30, 2016, an increase of 78 percent. Congress tied subsequent annual penalty adjustments automatically to the Consumer Price Index, and thus, penalties have made gradual increases since to the current maximum of $13,653. In 2016, Congress also increased “willful” and “repeated” violations from $70,000 per item to $124,709.