By Eric J. Conn and Beeta B. Lashkari

As we mentioned in our last update from December, OSHA continues to move swiftly on its rulemaking for a Heat Injury and Illness Prevention Standard in Outdoor and Indoor Work Settings.  We attended the National Advisory Committee on Occupational Safety and Health (“NACOSH”) committee meeting on January 10^th, where the Committee primarily addressed recommendations and updates from NACOSH’s Heat Injury and Illness Prevention Work Group (“Work Group”), and wanted to provide you this update.

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 for compliance assistance materials about heat illness prevention), and the other sub-group addressing Task 2 (developing key recommendations on potential elements of a Heat Injury and Illness Prevention Standard for OSHA to consider).  As expected, only the sub-group addressing Task 1 (“Compliance Assistance Work Group”) delivered its recommendations to the full NACOSH committee during the January 10^th meeting.  The sub-group addressing Task 2 (“Rulemaking Work Group”) – which is the sub-group more important to our Coalition – reiterated that it is still in the process of developing recommendations, to which OSHA responded with some strong words.  More on that below.

To start, the Compliance Assistance Work Group presented its findings and recommendations to the full NACOSH Committee, which the Committee approved unanimously without changes.  Four of the ten recommendations aim to improve OSHA’s guidance on heat dangers, urging the agency to:

1. 1. ensure all documents related to heat danger “identify employer responsibility and worker rights”;
   2. correct or eliminate products like workplace posters that include broken links or misinformation;
   3. target healthcare providers as well as heat-exposed workers, including with educational materials for first responders; and
   4. identify products to make them multi-lingual or even convert to non-verbal modes that use animation or infographics rather than text.

The recommendations also state that OSHA should:

1. 1. continue its “outreach/marketing” on heat dangers with community partners and other “outreach providers”;
   2. broaden the scope of that outreach to include temporary workforces and young workers;
   3. seek to target “the widest possible range of workers,” noting that the current National Emphasis Program for heat includes more than 75 sectors; and
   4. step up its use of “social media and apps” in those programs.

Lastly, the recommendations urge OSHA to:

1. 1. identify new technology and best practices workers and employers can use to mitigate or monitor heat, such as wearable health trackers; and
   2. “assure that solutions are evidence based” through technical review of all relevant materials.

These recommendations are not terribly surprising.  Again, this Work Group’s recommendations are focused on compliance assistance materials, but certainly could influence the Rulemaking Work Group’s recommendations regarding potential elements of a Heat Injury and Illness Prevention Standard.  In that regard, we might expect to see a standard that applies as broadly as possible, encompassing both outdoor and indoor heat hazards, with the 75+ industries identified in OSHA’s National Emphasis Program for Outdoor and Indoor Heat Illness Prevention as a possible guidepost for determining the scope of employers to which the standard may apply.  We might also expect a standard that focuses at least in part on requiring employers to provide effective training (i.e., in a language and at a literacy level employees understand).  Whether OSHA will require employers to provide technology (e.g., wearable health trackers) is less likely given, among other things, the associated costs and privacy concerns regarding that type of technology.  Andrew Levinson, OSHA’s Director of the Directorate of Standards and Guidance, stated that OSHA is taking steps to develop new compliance guidance to employers on minimizing heat dangers before weather begins to warm this Spring, and that OSHA is looking forward to telling the full NACOSH Committee how OSHA is moving forward with the guidance at the next NACOSH meeting.

As to the Rulemaking Work Group’s update, we learned that they are still in the process of developing recommendations.  Mr. Levinson from OSHA’s Standards and Guidance Directorate urged the panel to quickly finalize its recommendations for the heat standard, because “OSHA is not sitting still and waiting” for that input to begin work on a Proposed Rule.  Mr. Levinson stated that OSHA would very much like the Committee’s input as OSHA is moving forward with the rule, and the agency will not hold its own work to wait for the NACOSH advisors to weigh in.  Indeed, Mr. Levinson pointed to the Department of Labor’s just-released Fall 2022 Regulatory Agenda, updating its schedules for a host of key rulemaking actions.  Per the Regulatory Agenda’s detailed report on the Heat Illness rulemaking, the Small Business Regulatory Enforcement Fairness Act (“SBREFA”) process is slated to begin this month (January 2023).

As background, under SBREFA, when an OSHA proposal is expected to have a significant impact on a substantial number of small entities, OSHA must notify the U.S. Small Business Administration’s (“SBA”) Office of Advocacy, which in turn recommends small entity representatives (SERs) to be consulted on the rule and its effects.  In this process, typically OSHA presents to the SERs actual proposed regulatory text for the first time.  OSHA next convenes a Small Business Advocacy Review Panel, consisting of officials from OSHA, the SBA’s Chief Counsel for Advocacy, and Office of Information and Regulatory Affairs (“OIRA”) within the White House Office of Management and Budget (“OMB”).  The panel hears comments from small entity representatives and reviews the draft proposed rule and related analyses prepared by OSHA.  A written report of this interagency panel is submitted to OSHA within 60 days.  OSHA reviews the report, makes any appropriate revisions to the rule and publishes the proposed rule along with the panel’s report in the Federal Register.

Although Mr. Levinson stated that he does not expect OSHA to meet the January 2023 internal deadline, Mr. Levinson did share that OSHA is taking steps to initiate the SBREFA process.  No further targets, such as a date for a Notice of Proposed Rulemaking (“NPRM”), are provided in the Fall 2022 Regulatory Agenda.  Nonetheless, as you can see, heat is clearly a top priority for the agency, and OSHA is moving as quickly as it can with this rulemaking.  We have contacts at the SBA and will be sure to keep you informed as we learn more about the SBREFA process in the coming weeks, as well as about the next NACOSH meeting in the spring.

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When OSHA initiates the SBREFA process, that will also mark a transition to the second phase of the rulemaking for Conn Maciel Carey’s Heat Illness Rulemaking Coalition.  We will work with our coalition members and SBA to identify at least one SER to participate in the SBREFA process.  We will develop talking points for the SBA Review Panel and written comments to submit at the end of the SBREFA process.  Let us know if you have any questions or would like any additional information about having your organization participate in the rulemaking coalition.