By Beeta B. Lashkari and Eric J. Conn

On Tuesday, May 3, 2022, OSHA held a virtual stakeholder meeting to discuss and receive public input about OSHA’s various initiatives designed to protect workers from heat-related hazards.  Below is a summary of the stakeholder meeting, as well as the comments we presented on behalf of our Employers Heat Illness Prevention Coalition.  If you would like to view the entire meeting, or view the agenda or some of the heat illness-related materials OSHA made available, they are available on OSHA’s Heat Forum Public Stakeholder Meeting website.

The meeting ran for approx. 6 hours (from noon to 6 PM).  More than 3,000 stakeholders signed up for the meeting, and more than 500 people requested to speak, including OSHA representatives, an OSHA leadership panel, and four batches of public comment.  Public commenters were each allotted a strictly enforced 3-minute window to speak.

Opening Remarks from Heads of DOL/OSHA

The Assistant Secretary of Labor for OSHA, Doug Parker, kicked off the meeting with opening remarks.  Mr. Parker began by explaining that heat-related hazards do not just affect workers who work outdoors.  They affect workers year-round in indoor environments, too.  Mr. Parker mentioned that, while 80% of heat-related fatalities happen in outdoor environments, more than 60% of heat-related illness occurs in indoor work environments, and since 2018, OSHA has conducted reactive heat illness inspections in more than 230 different industries, in both indoor and outdoor settings.  Mr. Parker went on to emphasize how workers of color are disproportionality affected by heat hazards because they are more likely to work in jobs where they are exposed to high levels of heat and often job tasks that involve exertion levels that increase body temperature.  Mr. Parker also expressed that the dangers of extreme heat are getting progressively worse, due to the impact of climate change.  He said that OSHA is committed to a workable solution that includes a range of approaches to address this issue.  Mr. Parker stated that indoor setting can control for temperature and humidity, and in both indoor and outdoor settings, we can control exertion levels, and ensure water, rest, and shade.

Deputy Assistant Secretary Jim Frederick spoke next.  Mr. Frederick provided an overview of the topics the OSHA speakers would address, including a heat illness prevention campaign, compliance assistance activities, OSHA’s enforcement efforts, including the new Heat Illness National Emphasis Program, and the rulemaking underway for a Heat Illness Standard, and ways for the public to engage in that process.  Mr. Frederick also explained that additional written comments following this stakeholder meeting can be submitted to the Rulemaking Docket through August 1, 2022.

Secretary of Labor Walsh spoke after Mr. Frederick.  Mr. Walsh spoke about how President Biden has prioritized worker safety, health and welfare, through such efforts to address safety from COVID-19 and infectious diseases, accidents and injuries, mental/physical health, and ensuring DOL and OSHA have the resources to take on the initiative.  Mr. Walsh also spoke about his background as a construction worker, and how it impacted his commitment to take on heat-related hazards very seriously.  In describing heat hazards, Mr. Walsh stated that the dangers posed by heat have gone on too long and are only getting worse as climate change becomes a climate crisis; that 18 of the last 19 summers have been the hottest summers on record; and that it is past time to provide the protections workers deserve.  Mr. Walsh explained that while OSHA initiated a rulemaking for heat hazards, that process can take some time, but OSHA is acting now by launching a National Emphasis Program.  He also spoke about how he has gone across the country, speaking to farmer, warehouse, and construction worker advocacy groups about this issue.

OSHA Panel and Public Commenters

The OSHA panel started with Pamela Barclay (Health Scientist) and Inanje Mintz (Health Educator), both out of OSHA’s Directorate of Standards and Guidance, who provided an overview of OSHA’s Heat Illness Prevention Campaign.  Many of the updates shared during the stakeholder meeting were the same as those shared during the NACOSH Meeting on February 22, 2022.  For example, OSHA has been hard at work updating and creating new heat illness prevention guidance materials.  It has a new Work Poster; Pamphlet; Infographics; Audio PSA; Video PSA; and OSHA Alert.  Most of these materials are available in multiple languages.

OSHA also shared plans for the 2022 heat season, which have been started, including:

• • improving the Heat Campaign website;
  • co-programming with the Safe + Sound campaign;
  • producing targeted materials for employer responsibility and acclimatization;
  • evaluating dated resources and materials to prioritize for updates;
  • using Facebook Live; and
  • publishing a heat e-newsletter.

Additionally, OSHA shared its first new resources for 2022, a video entitled “Remembering Tim: A Life Lost to Heat Illness at Work,” which was released on April 29, 2022.  It depicts the story of Tim Barber, who died at age 35 on July 7, 2020 from heat illness on his second day at work on a construction site.  OSHA teamed up with OSHA Region 2 Buffalo Area office and Tim’s parents to produce the awareness video.

One member of the public asked about heat acclimatization.  After providing a definition, OSHA reiterated that 3 of 4 heat-related fatalities occur during an employee’s first week of work.

The first period of public comment started at approximately 12:35 PM.  15 public commentators were slotted in this period.

The OSHA panel continued with a presentation on OSHA compliance assistance activities, led by Christina Morgan (Safety and Occupational Health Specialist in the Directorate of Cooperative and State Programs).  Ms. Morgan spotlighted 3 compliance assistance and outreach activities:

1. 1. Compliance assistance specialists (CAS)s.  Ms. Morgan explained that CASs are based in OSHA’s Regional and Area Offices across the U.S., and are resources for employers and workers.  Specifically, Ms. Morgan mentioned that they promote worker safety and health through stakeholder outreach on OSHA standards and enforcement; employer responsibilities and workers’ rights; and OSHA initiatives, including the Heat Illness Prevention Campaign.  Ms. Morgan also explained that CASs implement OSHA’s cooperative programs, including VPP.
   2. Labor Liaisons in OSHA’s Regional Offices.  Ms. Morgan explained that these are liaisons to workers and their representatives, including labor unions, worker centers and coalitions, and COSH (Councils for Occupational Safety and Health) groups.
   3. Onsite Consultation Program.  Ms. Morgan explained that the consultation program offers no-cost, confidential occupational safety and health services to small- and medium-sized businesses upon request.  The program is available in all 50 states, DC, and several territories.  They are separate from OSHA enforcement and are run by state agencies or public universities.  CMC NOTE: Although technically “separate” from OSHA enforcement, if consultation makes compliance recommendations that employers do not address, consultation can and does make “referrals” to OSHA enforcement to trigger enforcement inspections.

After that, Ms. Morgan described the type of work that compliance assistance folks do, which includes providing resources through radio, trainings, television, emails, presentations, articles, podcasts, newsletters, calls, mailings, exhibits, and speeches, including in the area of heat illness.  Ms. Morgan then shared a success story out of one of OSHA’s on-site consultation programs, specifically, that a water utility company requested an onsite consultation, and afterwards, OSHA personnel worked with them to develop a heat illness prevention plan for their specific worksite, with Secretary of Labor Walsh meeting with the company afterwards to discuss the company’s efforts.

Ms. Morgan concluded by sharing that OSHA Region 5 is hosting a free, 3-part webinar series on heat illness prevention (May 10, 17 & 24 at 11 AM ET).  We are already registered for the webinar series.  If you would like to register, you may do so here:  www.nsec.niu.edu/nsec/webinars/.

The second public comment session started at 1:55 PM.  14 public commentators were slotted in this period.

The OSHA panel continued after that with an overview of enforcement efforts by Jennifer Kim (Director of the Office of Health Enforcement in the Directorate of Enforcement Programs).  Ms. Kim covered the purpose, scope, and goals of the Heat Illness National Emphasis Program (“NEP”), as well as the NEP’s high hazard industries and inspection procedures.  We provided an update on this earlier, and have written extensively about the Heat Illness NEP.

In a nutshell:

• • On heat priority days (when the heat index is 80 degrees F or higher), OSHA will be conducting compliance assistance and inquiring about heat-related hazard prevention programs during any programmed or unprogrammed inspection.
  • In targeted workplaces in approx. 70 high risk industries (see Appendix A of the NEP), OSHA will open planned/programmed inspections and follow-up inspections when the National Weather Service has issued a heat warning, alert, or advisory for a local area (see www.weather.gov/safety/heat-ww).
  • OSHA may expand inspection scope during any inspection if heat hazards are present.
  • OSHA will prioritize on-site (in person) response for complaints and for all employer-reported hospitalizations (i.e., severe injury reports) related to heat hazards.

Other key points:

• • The September 1, 2021 heat initiative memo is now archived (because it has been incorporated into the Heat Illness NEP);
  • 3 main goals of the NEP are to:
    1. reduce or eliminate exposures to heat hazards, and to target industries and worksites where employees are exposed to heat-related hazards and are not provided with cool water, rest, cool shaded areas, training, and acclimatization;
    2. be proactive instead of reactive; and
    3. increase heat inspections by 100% above the baseline of the average of fiscal year 2017 through 2021.
  • Inspection procedures include: observations (heat sources, workloads exertions, PPE, duration); records review (OSHA 300s/301s, emergency records); interviews (symptoms, previous incidents, training); heat program (monitoring of ambient air temperature; water, rest, shade; acclimatization; administrative controls; training); and weather conditions.
  • Citation guidance includes the General Duty Clause (or Hazard Alert Letter as appropriate if all of the elements of the General Duty Clause are not met); Recordkeeping; PPE; Sanitation (drinking water); Medical Services and First Aid; and Health & Safety Program.
  • State Plans are not required, but are strongly encouraged, to adopt the NEP.

Then a 3^rd comment period at 3:05 PM ET.  15 public commentators were slotted in this period.

The OSHA panel session continued on OSHA Rulemaking and Ways to Participate, led by Steve Schayer (Director of the Office of Physical Hazards in the Directorate of Standards and Guidance) and Augusta Williams (Health Scientist in the Directorate of Standards and Guidance).  Dr. Schayer gave an overview of OSHA’s general rulemaking process, including the following stages:

• • Stage 1:  Conducting preliminary rulemaking activities
  • Stage 2:  Developing the proposed rule
  • Stage 3:  Publishing the proposed rule
  • Stage 4:  Developing and analyzing the rulemaking record
  • Stage 5:  Developing the final rule
  • Stage 6:  Publishing the final rule
  • Stage 7:  Post-promulgation activities

He then described the legal and regulatory concerns of rulemaking, including that the standard must be reasonably necessary or appropriate (health standards like this must eliminate significant risk or reduce it to the extent feasible); be technologically and economically feasible; be cost-effective; better effectuate the purposes of the Act than an applicable consensus standard; and be supported by substantial evidence in the record.  He explained that opportunities for stakeholder engagement include OSHA’s Request for Information and Advanced Notice of Proposed Rulemaking (completed), Stakeholder Meetings (like this one), Small Business Engagement (SBREFA), and the Notice of Proposed Rulemaking.  He also provided guidance on what makes a good public comment, specifying that good comments provide evidence, technical analysis, or arguments on policy issues; significant risk / material impairment of health; necessity or efficacy of the proposed rule; technological feasibility; and economic feasibility.

Dr. Williams then presented specifically on OSHA’s heat rulemaking, providing an update on its status.  Dr. Williams described that the heat rulemaking is still at Stage 1, and that OSHA’s analysis of the 1,078 public comments it received from various stakeholders is ongoing.  Dr. Williams also described the formation of a Heat Injury and Illness Prevention Work Group at NACOSH, which met for the first time on February 25, 2022, and will continue to meet.

A member of the public asked about the contents to be included in the proposed rule, as well as the timeline.  Dr. Shayer said that OSHA has not made any final decisions about the content of the proposed rule, nor does it have a time estimate for publishing a proposed rule.

This led to the 4^th and final comment period, which started at 4:25 PM, and in which CMC partner, Kate McMahon, spoke on behalf of our Employers Heat Illness Prevention Coalition.

Our Coalition’s Remarks

Kate introduced our Coalition as a group of employers with significant experience developing and implementing effective heat illness programs, supportive of OSHA’s overarching mission of ensuring employees are protected from heat illness, and urging OSHA to benefit from the experience responsible employers have had in implementing successful heat stress and illness programs over the last two decades.  Kate then effectively explained two of our Coalition’s key points –

1. 1. because the hazard of heat is very dependent on the environment, we urge OSHA to develop a performance-oriented standard, and that flexibility will allow for more, not less, effective program; and
   2. there are 4 critical components to successfully controlling heat hazards (hydration, shade, flexibility in exertion, and training), and that, in particular, robust training and hazard recognition – for employees and managers/supervisors – is critical to controlling heat hazards.

Kate also provided that we plan to continue to dialog with OSHA and serve as an active stakeholder in the rulemaking process.

OSHA Leadership Panel

The last session of the day was the OSHA leadership panel, moderated by Mandy Edens (the career Deputy Assistant Secretary of Labor for OSHA), with panelists Andy Levinson (Acting Director, Directorate of Standards and Guidance), Doug Kalinowski (Director, Directorate of Cooperative and State Programs), Kim Stille (Director of Enforcement Programs), and Scott Ketcham (Director, Directorate of Construction).  The panel took and answered numerous questions, including with these highlights:

• • OSHA described how the heat illness campaign historically had been focused on water, rest and shade, but OSHA has more recently focusing on acclimatization, as well.
  • OSHA explained its goal of destigmatizing the reporting of heat illness symptoms by encouraging more open communication about heat hazards.
  • OSHA stated that frontline supervisors must be familiar with heat hazards.
  • OSHA described how issuance of a standard creates a “level playing field” for employers who have already proactively created heat illness prevention programs.
  • After mentioning that the hearing on the COVID-19 permanent standard for healthcare had just concluded, OSHA reiterated that it is reviewing comments on the ANPRM, and that the next step for public engagement will be a SBREFA meeting for small businesses, but no date for that has been set yet, and that OSHA rulemakings like this can take around seven years.
  • OSHA stated that the construction industry will definitely be covered by the heat standard.
  • In terms of wearing necessary PPE, but not increasing heat load, OSHA mentioned that there are cooling equipment technologies that can be adopted.
  • On the topic of mobile worksites, in construction, OSHA mentioned that it is important to consider the mobile workforce in the rulemaking, especially with respect to acclimatization.
  • To deal with the mix of indoor and outdoor heat hazards, OSHA mentioned that it received many comments that flexibility is important, and that OSHA is definitely not looking to create a one-size-fits-all standard.  Rather, OSHA wants to be able to cover outdoor/indoor, mobile/fixed workforces so that employers can actually comply.
  • In addition, OSHA states that this is only the second time OSHA has requested a specific NACOSH Work Group, and the Work Group is represented by both fixed and mobile work groups, and tasked with addressing this issue.
  • OSHA said climate change actually plays a small role in the heat rule.  OSHA is focused on the hazards of dangerous heat, but climate change plays a part in the rulemaking in terms of economic modeling.

Next Steps

Let us know if your organization may be interested in joining our Employers Heat Illness Prevention Rulemaking Coalition.  We are still at a very early stage in the rulemaking, with numerous opportunities to have a voice in the process.