By Beeta B. Lashkari and Eric J. Conn

With the winter holidays upon us, heat illness may not be front and center on your minds, but OSHA continues to be push full steam ahead on its rulemaking for a Heat Injury and Illness Prevention Standard in Outdoor and Indoor Work Settings, so we wanted to provide you a quick update.

In September, OSHA had drafted but not yet released a summary document of all of the 1,078 comments the agency had received in response to the ANPRM.  That summary document is now publicly available, posted on December 16, 2022 on the National Advisory Committee on Occupational Safety and Health (“NACOSH”) docket for its Heat Injury and Illness Prevention Work Group.  Below are some highlights from the summary document.

Notably, our Coalition’s written comments were referenced 14 times in the summary document, including for the following propositions:

1. 1. Air conditioning would be prohibitively expensive in very large facilities.
   2. There should be no requirement for any specific work-rest schedule.
   3. Work-rest schedules should be task or performance-based.
   4. Workers’ shifts or temporary jobs are structured in a way in which acclimatization is not practical (e.g., 7 days on, 7 days off or short-term tasks).
   5. Acclimatization procedures should be flexible so employers can adapt to their unique conditions.
   6. It would be logistically and economically intensive to track acclimatization status of new employees for temporary and contract workers contexts, as it is not always possible to match a worker’s previous acclimatization state to the new work, and some jobs are so temporary in nature that a worker would not have time to acclimatize to the new work conditions.
   7. OSHA and employers should not be dictating the amount of water workers consume, as this should be left up to workers.
   8. It would be difficult and impractical for employers to monitor individual workers’ water consumption and/or hydration levels.
   9. There should be no requirement for using wearable medical monitoring devices to track employees due to privacy concerns and concerns about burden on employers.
   10. OSHA should consider the costs associated with additional equipment and hiring new personnel.
   11. OSHA should consider the costs associated with WBGT and wearable devices.
   12. There are concerns about the higher costs of implementing engineering controls.
   13. Air conditioning is the costliest engineering control, but modifications to structures could be explored.
   14. There are economic feasibility concerns regarding implementing additional technology and equipment, such as air conditioning and wearable devices.

Other Highlights from ANPRM Comments Summary Document

In the 22-page document, OSHA provides a summary of the 1,078 comments it received in response to the ANPRM.  The summary document does not include comments received from the May 3, 2022 Stakeholder Meeting on OSHA’s Initiatives to Protect Workers from Heat-Related Hazards, at which we presented comments on behalf of the Coalition.  As you may recall, the public comment period for the ANPRM closed on January 26, 2022.  Although OSHA received 1,078 comments total, the agency states in the summary document that OSHA received 965 unique public comments from stakeholders representing various interests.  The approximate percentage of comments received by stakeholder type is as follows: private citizens (75%), associations or organizations (16%), unspecified (3%), industry (3%), unions (1%), academia (1%), state and local governments and other federal agencies (1%).  The summary document sets forth common themes and divergent perspectives.

Here are some of the common themes:

• Heat Injury and Illness Prevention Plans.

• • OSHA received dozens of comments supporting a requirement for employers to develop and implement a comprehensive heat injury and illness prevention program or plan. Industries that were mentioned in comments related to heat prevention plans include: restaurant, manufacturing, agricultural/outdoor, food and beverage, bakery, construction, electrical work, landscaping, heating, ventilation, and air conditioning (HVAC), healthcare, warehousing, and foundries.

• Heat Exposure Measurement Metrics and Monitoring.

• • OSHA received over a hundred comments that discussed heat monitoring and exposure measures.
  • One of the most mentioned threshold values in the comments was a heat index of 80°F, which is used in the National Weather Service Heat Index chart and by OSHA’s Directorate of Enforcement Programs to define heat priority days in the agency’s National Emphasis Program on Outdoor and Indoor Heat-Related Hazards.
  • A common theme in the comments was that there should not be a single threshold or trigger level used for the entire country because of variation in climate and operations.
  • Across all heat metrics, it was recognized that there are other contributing factors to risk of heat-related illness and injury which should be considered, including, but not limited to, metabolic heat, clothing, PPE, personal risk factors, time of year, acclimatization, and individual variation in physiology.

• Engineering Controls.

• • OSHA received numerous comments on the use of engineering controls for preventing heat-related injury and illness in both indoor and outdoor work settings. The most mentioned engineering controls were the provision of air conditioning, fans, and shaded areas. OSHA received many comments from workers speaking from their experiences of working in hot conditions with no air conditioning or shade, as well as comments from industry representatives describing the challenges and costs of providing some of these engineering controls.
  • A few of the comments were specific to package delivery workers, many arguing for the provision of air conditioning in delivery trucks.

• Administrative Controls.

• • OSHA received many comments on administrative controls to prevent occupational heat injury and illness. Comments discussed work-rest schedules, pay structures, work schedule changes, education and training, heat management plans, acclimatization, provision of water, rest breaks in shade, buddy systems, supervision, availability of restrooms, workers’ rights, and consideration of COVID-19 and other hazards when accounting for heat hazards.

• Water and Hydration.

• • OSHA received dozens of comments on water and hydration. A major theme of these comments was that water is important and should be easily accessible, cool, free of charge, clean/potable, as close to workers as is practical, and available at all times.

• Personal Protective Equipment.

• • OSHA received dozens of comments on the topic of PPE for preventing heat-related injury and illness. The most mentioned PPE were cooling vests, vented hard hats, cooling towels, and neck wraps. There were dozens of comments highlighting the need for clothing and work uniforms to be light-colored, lightweight, made of breathable fabric and permeable fibers, and moisture wicking. Other PPE ideas included the use of camelbacks for hydration, ice vests and jackets, cooling vortex tubes, respirators with air temperature regulating valves, mesh safety vests, and personal cooling systems (PCS) that operate underneath PPE.

• Medical Surveillance.

• • OSHA received multiple comments relating to physiological monitoring, medical screening programs, medical surveillance, and symptom monitoring.

• • • Wearable Devices.
      • OSHA received several comments on wearable devices for measuring heat strain. The comments discussed efficacy, accuracy, cost, data management, and use-related issues. The types of wearable devices mentioned included devices that provide intermittent or constant physiological monitoring, such as:
        • Heart rate monitoring devices (wrist straps and heart straps)
        • Gastrointestinal temperature-sensing pills
        • Harnesses
        • Armbands
        • Washable shirts
        • Smartwatches (individually owned)
      • Some of the commenters expressed support for wearable technologies as an economical way to implement medical monitoring, due to their affordability, accessibility, and ability to more directly measure an individual’s heat strain. Some commenters noted that wearable devices are useful because they provide individualized data whereas policies at the group level may not be protective for all workers. Other commenters expressed concern about wearable technologies. Some commenters expressed concern that wearable technologies were not yet affordable. Several commenters also expressed concern about the accuracy and efficacy of wearable technologies, noting that there is little validation information available. Commenters also expressed concern that wearable technologies can be difficult to use for reasons such as interference with PPE, lack of signal or alarm when strain occurs, discomfort, and data management or data accessibility concerns.

• Training and Worker Engagement.

• • OSHA received multiple comments relating to worker training and a couple of comments on worker engagement for heat injury and illness prevention. Many of these comments supported training requirements for a heat injury and illness prevention standard.

• Emergency Response and Planning.

• • OSHA received a few dozen comments on planning for and responding to heat-related medical emergencies. Many of these comments emphasized the need for employers to establish emergency action plans and emergency procedures.
  • Some commenters also specified what should be included in an emergency action plan, that employers create this plan with input from workers and healthcare professionals (which could include athletic trainers and occupational health nurses), what equipment should be onsite, and that employers should provide means of calling emergency services.
  • Another common theme was the need to train workers and supervisors on the signs and symptoms of heat-related emergencies and protocol on how to respond.

• Economics and Feasibility.

• • OSHA received hundreds of comments on economic topics, covering the costs of a heat rule, the benefits, the impacts on small entities, and economic feasibility.

• • • Costs.
      • OSHA received dozens of comments on the costs and burden of a proposed rule for businesses. A few of the commenters mentioned the costs of additional equipment and the costs of hiring new personnel.  The overarching theme of these comments was that employers will have issues affording new monitoring equipment and personnel to operate the equipment. Thus, these commenters argued, it could be difficult to remain in business. There was also a call for the proposed standard to not impede agricultural production.

• • • Benefits.
      • OSHA received many comments related to the benefits of a proposed rule for heat. Benefits-related comments focused on the various impacts of extreme heat, which include health, safety, productivity, and financial impacts.
      • Commenters mentioned several negative health impacts from extreme heat, including:
        • Heat stroke (and subsequent risk for organ failure or death)
        • Heat exhaustion
        • Heat syncope
        • Heat cramps
        • Heat edema
        • Heat rash
        • Rhabdomyolysis
        • Exacerbation of pre-existing asthma, heart disease, diabetes, or kidney disease
        • Acute kidney injury and chronic kidney disease
      • Commenters mentioned other negative impacts, including reduced safety and lower productivity.
      • Some commenters provided estimates of these impacts.
      • A few commenters provided estimates of reductions in heat-related injuries from various programs.
      • Several commenters provided estimates of the increase in injuries from a rise in temperature.
      • Some commenters provided estimates of the reductions in productivity due to high temperatures.
      • A few commenters provided dollar estimates from injury costs.

• • • Small Entities.
      • Commenters mentioned several controls and equipment which may be difficult or unaffordable for small entities, including specialized staff for physiological and medical monitoring, air conditioning or HVAC for climate control, acclimatization, rest breaks, work during off-peak hours, or job rotations, development and maintenance of training manuals, training consultants, water-cooled and air-cooled garments, shade tents and coolers, and individual physiological monitoring equipment.
      • Commenters discussed certain elements which may be affordable to small entities, including: scheduling work for cooler times, buddy system monitoring, providing fluids, readily available weather information, such as from the National Weather Service, monitoring programs, the framework described in ASTM B3279-21, and training in heat illness recognition and prevention.

• • • Economic Feasibility.
      • OSHA received approximately two dozen comments on the economic feasibility of a proposed rule. Some commenters from the agricultural sector wrote that a federal heat standard could force them out of business. Some of the commenters expressed concern about the feasibility of various acclimatization procedures, which they argued would be impossible to implement in areas with significant fluctuations in temperature. Finally, there were numerous comments regarding the economic feasibility of implementing additional technology and equipment, such as air conditioning and wearable devices.

Some of the issues raised in the comments, in which there were particularly divergent perspectives presented, include:

• • Elements that should be included in an employer’s heat injury and illness prevention plan and the extent to which any regulation should specify these elements
  • The utility and feasibility of various heat exposure metrics (i.e., ambient temperature, heat index, WBGT), including potential thresholds that could be used for these metrics and the effectiveness of any metrics and thresholds currently in use
  • Whether and how OSHA should account for variations in climate across the country or consider other factors (e.g., clothing, PPE) that contribute to the risk of heat-related illness and injury
  • The utility and accuracy of forecast data and/or smartphone apps (such as the OSHA/NIOSH Heat Safety Tool App) in lieu of, or in addition to, worksite measurements
  • The feasibility of providing air-conditioning in package delivery trucks, break rooms, or in indoor workplaces, including those that are very large (e.g., warehouses), have hot work processes (e.g., kitchens, foundries, forge shops), or are open or partially open to the outside
  • The utility and feasibility of insulation for hot equipment
  • Recommendations for outdoor cooling technologies (e.g., cooling fans, misting machines, arm immersion cooling systems, air-conditioned vehicles), including their utility and feasibility
  • Considerations regarding shaded areas, including where they should be located on a worksite and what they should include, and whether natural sources of shade are appropriate
  • Appropriate work-rest schedules, including the utility and feasibility of schedules currently in use and the extent to which a regulation should specify the number and frequency of rest breaks
  • The extent to which a standard should require supervision (e.g., monitoring, buddy systems, daily readiness checks, etc.) as opposed to allowing employee self-monitoring or self-pacing
  • The utility and concerns about shifting work schedules to cooler times of the shift or day
  • The utility and feasibility of acclimatization procedures for new and returning workers, the extent to which a regulation should specify such procedures, and how to account for workers responding to emergencies or working in areas with significant temperature fluctuations
  • Appropriate hydration requirements, including the extent to which a regulation should specify where and how water should be provided (e.g., water coolers, disposable cups), the quality of the water provided, and/or routine access to restroom facilities
  • Recommendations for PPE (e.g., cooling vests, vented hard hats, cooling towels, neck wraps, etc.), including the utility and feasibility of PPE currently in use
  • The utility, accuracy, and feasibility of physiological monitoring devices, such as wearables, and whether OSHA should consider including such devices or other medical surveillance provisions
  • Training requirements, including the content and formats most effective for reaching workers
  • Emergency response requirements and the extent to which a regulation should specify them
  • The extent to which implementing controls, such as air conditioning and rest breaks, might result in productivity gains to offset costs and impacts on small entities
  • Flexible options or less costly approaches that could be incorporated into a regulation

Other Updates About OSHA’s Focus on Heat Illness:

NACOSH’s Heat Injury and Illness Prevention Work Group (“Work Group”) held a meeting on December 13, 2022, which we attended and summarize below.

As a reminder, the NACOSH Work Group was split into two sub-groups – one addressing Task 1 of the Charge to the Work Group (evaluating and providing input and recommendations on OSHA’s heat illness prevention compliance assistance materials), and the other sub-group addressing Task 2 (developing key recommendations on potential elements of a Heat Injury and Illness Prevention standard that OSHA should consider in its open rulemaking).  As expected, only the sub-group addressing Task 1 (“Work Group 1”) reported that it was ready to deliver its recommendations to the full NACOSH committee at the NACOSH meeting scheduled for January 10, 2023.  It presented its discussion draft during the December 13 meeting, which is now publicly available, posted on the Heat Injury and Illness Prevention Work Group of NACOSH docket on December 16, 2022.  The sub-group addressing Task 2 (“Work Group 2”) – which is the sub-group whose work is more important to the Coalition – is still in the process of developing recommendations, and will present an update to the full NACOSH committee at the meeting on Jan. 10.  Though, we still expect Work Group 2 to present their recommendations by early 2023.

Per the discussion draft, Work Group 1’s assignment was to evaluate and provide input and recommendations on OSHA’s heat illness prevention materials using the following charges established by OSHA:

1. 1. To identify whether there are communication strategies or products that are useful for employers and workers that are not currently being used by OSHA.
   2. To identify whether there are critical heat topics missing from materials.
   3. To identify whether materials are accessible to the populations most at risk of hazardous heat exposure in outdoor and indoor work settings.
   4. To identify whether existing guidance materials are up to date and align with current best practices in heat hazards and heat illness prevention.
   5. To identify specific industries or audiences that would benefit from more tailored guidance materials.

Work Group 1 states in its discussion draft that OSHA’s heat awareness campaign dates to the early 2000’s, and some of the content and products contained within the campaign are outdated, and/or new scientific and/or technical information is available. Work Group 1also identified areas where content was deficient or missing.  In making recommendations, Work Group 1 identified priorities within charge for OSHA to implement in accordance with their own strategic plan and campaign cycles.  Where short-term recommendations were made, Work Group 1 advises these be conducted in the next one to two campaign cycles (6 – 12 months). Mid-term recommendations are 12 – 36 months. Work Group 1 did not make any long-term recommendations.

At the end of the meeting, Work Group 1 was instructed to prepare a report of its recommendations to provide to the NACOSH Chair in advance of the January 10 meeting:

1. • The sub-group addressing Task 2 (“Work Group 2”) stated that it continues to work on developing recommendations, and that it will provide an update to the full NACOSH committee during the January 10 NACOSH meeting.  It stated that it is currently:

1. 1. 1. 1. Reviewing summary of ANPRM comments
         2. Reviewing existing standards/protocols
         3. Reviewing OSHA’s National Emphasis Program (“NEP”) on Outdoor and Indoor Heat-Related Hazards to help prioritize and consider practical application of elements
         4. Holding in-depth group discussions on areas that should be included or addressed by OSHA in a standard (i.e., employer written exposure control plans, training for workers and supervisors, etc.)
         5. Identifying best practices and practical examples of mitigating occupational heat, as relevant
         6. Creating a framework with priorities and key considerations for OSHA within key areas of a standard
         7. Identifying overlaps with Task 1
         8. Developing key recommendations for NACOSH in 2023

As we have mentioned, the full NACOSH committee has the authority to adopt all or some of the proposed findings and recommendations developed by the Work Group, with or without modification, and to present those findings and recommendations to OSHA.  Alternatively, the full committee may decline to make any recommendations to OSHA.

We will be in attendance at the January 10, 2023 NACOSH meeting and will be sure to report back with a detailed update.

Let us know if you have any questions or would like any additional information about participating in CMC’s employers heat illness rulemaking coalition.