By Eric J. Conn, Chair of Conn Maciel Carey LLP’s National OSHA Practice

While we and employers across the nation have been focused on OSHA’s issuance of its second COVID-19 emergency temporary standard in six months, earlier this month, OSHA published in the Federal Register an Advanced Notice of Proposed Rulemaking initiating a new formal rulemaking focused on “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings” (the ANPRM).  The ANPRM provided this summary of OSHA’s action:

“OSHA is initiating rulemaking to protect indoor and outdoor workers from hazardous heat and is interested in obtaining additional information about the extent and nature of hazardous heat in the workplace and the nature and effectiveness of interventions and controls used to prevent heat-related injury and illness. This ANPRM provides an overview of the problem of heat stress in the workplace and of measures that have been taken to prevent it. This ANPRM also seeks information on issues that OSHA can consider in developing the standard, including the scope of the standard and the types of controls that might be required.”

And while everyone still has most of our focus on OSHA’s Vaccination, Testing, and Face Coverings emergency temporary standard, it is critical that those industries and employers potentially impacted by an OSHA heat illness regulation focus on this important active agency rulemaking.  In fact, long after COVID-19 is a just bad memory in the rearview mirror, a heat illness standard will have lasting and potentially enormous impacts on your organization.

To that end, Conn Maciel Carey LLP is organizing a new fee-based coalition of employers and trade groups to participate in OSHA’s Indoor and Outdoor Heat Illness Rulemaking with a goal of helping to shape any heat standard that OSHA ultimately promulgates in such a way that the rule is palatable to Industry.

Those that have participated in other rulemaking coalitions that we have formed, know that together we have accomplished a great deal relative to those rulemakings, including, for example, achieving a lot of improvement from our advocacy to OSHA’s COVID-19 Vaccination, Testing, or Face Coverings ETS, and we have played a very important role for Industry on Cal/OSHA’s COVID-19 Prevent ETS, as one of very few employer-representatives serving on the Advisory Committee to the agency’s Standards Board.  In both rulemakings, we have advocated for certain regulatory terms, specific regulatory text, exceptions and carveouts that have made their way directly into those rules specifically as we had recommended.  Likewise, with respect to new regulations, we have leveraged our work on behalf of our coalitions to obtain favorable FAQs, guidance, and interpretation letters after the rules issued.  Finally, our participants have derived considerable value from the educational aspect of the coalition work we do, including through regular and frequent email updates (often with non-public information) and webinars and brainstorming sessions.

We intend to play a fundamental rule in this heat illness rulemaking as well, and hope to significantly impact the ultimate requirements and application of a federal heat illness standard.  While we intend to follow a similar approach in organizing this Employers Heat Illness Prevention Coalition, unlike the recent COVID-19 rulemakings, the heat illness rulemaking will not follow an expedited/emergency process.

Rather, OSHA will be bound to follow the Administrative Procedure Act and the rulemaking mandates of Sec. 6(b) of the OSH Act, both of which afford stakeholders multiple opportunities to participate in the rulemaking process; thus, the process will be more in-depth, lengthy, and demanding.  Importantly, it is our view that to have a real impact on an OSHA Section 6(b) rulemaking, it is essential to take advantage of each of those opportunities to engage with the agency to advance Industry’s positions, and to begin participation at the earliest possible opportunity while the rulemaking is in its formative stages. In the first instance, therefore, we would like to submit a robust set of written comments in response to OSHA’s ANPRM.

We will be holding a coalition kickoff/brainstorming meeting on December 7th at 3:30 PM ET. During that organizing call, we will discuss OSHA’s plans for this rulemaking, expecting timing for development of a heat illness standard, the rulemaking process, opportunities for engagement with OSHA, and the objectives of the Employers Heat Illness Prevention Coalition. We also will brainstorm about the development of a set of comments in response to OSHA’s ANPRM, which identifies over 100 topic areas of focus for which OSHA is requesting information.

Below are twenty-five of those topics OSHA included in its ANPRM for which information from Industry could drive the direction OSHA takes with this rulemaking, and which we intend to dig into in our written comments:

1. Are OSHA’s existing efforts and authorities (i.e., existing campaign, guidance, enforcement, and other efforts) adequate to protect workers from hazardous heat in indoor and outdoor work settings, and if not, what are the gaps and limitations?
2. Are there industries, occupations, or job tasks that should be considered when evaluating the health and safety impacts of hazardous heat exposure in indoor and outdoor work environments?
3. What [geographic] regional differences should be considered or accounted for when determining the appropriate interventions and practices to prevent heat-related injuries and illnesses among workers?
4. What efforts are employers currently taking to prevent occupational heat-related illness in their workplace, and how effective have employers been in preventing occupational heat-related illness in their workplaces?
5. What are the advantages and disadvantages of using various metrics to monitor and assess hazardous heat exposure in the workplace (e.g., heat index, ambient temperature, WBGT)? What thresholds are utilized for various metrics implemented in existing occupational heat prevention plans or activities? Are these thresholds effective for preventing heat-related illness and fatalities?
6. Which metrics and accompanying thresholds are both feasible and health-protective in both indoor and outdoor occupational settings?
7. What individual risk factors are the most important contributors to heat-related illness risk?
8. Are there existing employer-led heat prevention programs that consider individual-level risk factors in their prevention guidance? If so, how are they implemented? What are the challenges associated with this?
9. What engineering controls, administrative controls, or PPE can be used to prevent heat-related illness in indoor and outdoor work settings? Have the qualitative or quantitative effectiveness of these controls been
10. evaluated? Are certain controls that are more effective or more feasible than others? If so, which ones?
11. What are the limitations associated with implementing water, rest, and shade effectively in indoor and outdoor work settings?
12. How are work-rest cycles currently implemented in indoor and outdoor work settings?
13. How do productivity or output based payment schemes affect the ability of workers to follow or employers to implement heat illness and injury prevention training, guidance or requirements?
14. What are current and best practices for and challenges with implementing acclimatization in various industries and in indoor work settings versus outdoor work settings?
15. What are the best practices for and challenges with implementing exposure, medical, and/or physiological monitoring programs to assess workers’ health and safety during hazardous heat events? How effective are the monitoring activities in preventing heat-related illness in workers? Who implements these programs? Does that individual(s) have specialized training or experience?
16. What should be included in an employer’s heat emergency response plan; i.e., what are current best practices for and challenges with responding to occupational heat-illness emergencies in both indoor and outdoor work environments?
17. What materials or supplies should employers have on-site to respond to a heat emergency?
18. What types, scope and format of occupational heat injury and illness prevention training programs have been implemented and how effective are they?
19. What are the potential economic impacts associated with the promulgation of a standard specific to the risk of heat-related injury and illness?
20. If you have implemented a heat injury and illness program or policy, what was the cost of implementing the program or policy (both time and expenditures for supplies and equipment)?
21. Are there alternative regulatory or non-regulatory approaches OSHA could use to mitigate possible impacts on Industry?
22. What are the most effective aspects of and biggest challenges implementing existing State standards aimed at preventing occupational heat-related illness (i.e., in CA, MN, WA, OR)?
23. What are current and best practices for protecting workers in various types of work arrangements, including temporary and multi-employer work arrangements, from hazardous heat exposure?
24. Are there limitations or concerns in preventing heat-related injury and illness in workers that vary among businesses of various sizes?
25. How should climate change be factored into an OSHA heat illness and injury prevention standard?

The current deadline for submission of comments on the ANPRM is December 27, 2021. However, we have already submitted this request for an extension of the comment period, and we have very good reason to expect that we have secured at least an additional 30 days to submit comments – out until at least the end of January 2022.

Nonetheless, it will take significant time to gather pertinent data and information related to the relevant subjects; to discuss and develop an understanding of what the Coalition finds feasible, workable and acceptable; to evaluate the technological and economic burdens of the possible controls OSHA may wish to include in the standard, etc.  We therefore would like to roll up our sleeves and get going. We would be honored to partner with your organization in this endeavor through the formation of a new coalition designed to influence the outcome of the Heat Illness rulemaking.  If your organization is interested in participating, please let me know as soon as you are able.

Once we gain an understanding of the industries represented by the coalition, we will develop a refined plan for how to address different industries’ interests, and also will be in a position to determine a fee structure for participation. Preliminarily, however, we expect that it will be most feasible to set a series of fixed fees tied to the major phases of the rulemaking and attendant activities we will undertake. For example, the first phase of our work would include the initial organization of the coalition; assessment of the coalition members’ interests (through brainstorming sessions and direct participant communications); benchmarking existing programs relevant to the standard; and development of one or more comprehensive sets of comments responsive to OSHA’s ANPRM.

Eric J. Conn
Chair of the OSHA • Workplace Safety Practice
617.256.8666
econn@connmaciel.com