By Eric J. Conn, Kate M. McMahon and Beeta B. Lashkari
On March 20th OSHA announced that it will hold a virtual meeting of the Heat Working Group (“Working Group”) of the National Advisory Committee on Occupational Safety and Health (“NACOSH”) for later this week – on Thursday, April 27, 2023. We expect the Working Group presentation to include specific recommendations on potential elements of a Heat Injury and Illness Prevention standard. The full NACOSH committee will meet a little later, sometime in May (date TBD), likely to receive and vote on the recommendations of the Heat Working Group about a potential heat illness standard. NACOSH recommendations typically carry great weight with OSHA, and we expect OSHA will most certainly give them serious consideration. Indeed, we believe OSHA has delayed the start of its SBREFA process so that it can utilize the NACOSH recommendations in formulating the rulemaking package for participants in the SBREFA (more on that below). Accordingly, these Spring NACOSH meetings will be a major milestone in OSHA’s rulemaking process, as the recommendations from NACOSH are expected to set the foundation for OSHA to develop its proposed rule.
The April meetings also will be our first opportunity to get a real glimpse at the outline and terms of what a proposed Heat Injury and Illness Prevention rule will look like. On behalf of our Coalition, Conn Maciel Carey has registered to join the April meeting (and, once the date is confirmed and announced by OSHA, will register to the join the May meeting, as well). We will share an update on what we learn following each meeting.
As a brief recap, OSHA initiated its rulemaking on “Heat Injury and Illness Prevention in Outdoor and Indoor Settings” on October 27, 2021, when OSHA published an Advance Notice of Proposed Rulemaking (“ANPRM”) in the Federal Register. Comments on the ANPRM were due January 26, 2022. NACOSH has played an important role in this rulemaking since that time. The NACOSH Heat Working Group was split into two sub-groups – one charged with evaluating and providing input and recommendations for compliance assistance materials about heat injury and illness prevention (“Compliance Assistance Work Group”), and the other sub-group addressing the development of key recommendations on potential elements of a Heat Injury and Illness Prevention Standard for OSHA to consider (“Rulemaking Work Group”). Over the course of the last year, OSHA has held numerous NACOSH Heat Working Group meetings (followed closely each time by a full NACOSH meeting), including meetings on February 22 and 25, 2022, June 30, 2022, September 12 and 13, 2022, December 13, 2022 and January 10, 2023. OSHA also held a Heat Injury and Illness Stakeholder Meeting on May 3, 2022.
On behalf of our Employers Heat Illness Prevention Coalition (“Coalition”), we have participated actively in the rulemaking to date. We submitted comments on the ANPRM, participated and/or provided testimony at each NACOSH Heat Working Group and full NACOSH committee meeting (see e.g., February 15, 2022 comments here, and June 23, 2022 comments here), provided testimony at OSHA’s Heat Injury and Illness Stakeholder Meeting, and made numerous written submissions to NACOSH/OSHA throughout the NACOSH process.
The Start of the SBREFA Phase of OSHA’s Heat Illness Rulemaking
The Spring NACOSH meetings are also a sign that the Small Business Regulatory Enforcement Fairness Act (“SBREFA”) phase of the rulemaking is about to begin, which, per the Department of Labor’s Fall 2022 Regulatory Agenda on the rulemaking, was initially slated to begin in January 2023. The SBREFA process provides stakeholders a unique and significant opportunity to shape the scope of the proposed rule being developed by OSHA. As background, under SBREFA, OSHA proposals expected to have a significant impact on small businesses must proceed through a SBREFA review. OSHA must notify the U.S. Small Business Administration’s (“SBA”) Office of Advocacy, which in turn establishes a group of small entity representatives (“SERs”) to provide comment on the rule and its potential impacts and effects on small business, for what is called the “Small Business Advocacy Review Panel,” a group consisting of officials from OSHA, the SBA’s Chief Counsel for Advocacy, and the Office of Information and Regulatory Affairs (“OIRA”) within the White House Office of Management and Budget (“OMB”).
In this process, OSHA typically presents for the first time to the SERs draft proposed regulatory text and related supporting analyses for the rule (e.g., economic and technological feasibility analyses, risk assessments, etc.). This early viewing of draft text of the standard allows SBREFA participants to weigh in while the agency’s consideration of the rule remains fluid and is therefore one of the most important opportunities for stakeholder influence in the entire rulemaking process.
We expect that, once the NACOSH Rulemaking Work Group’s recommendations are presented to the full NACOSH committee this month, and then the full NACOSH committee votes on the recommendations in May, OSHA will initiate the SBREFA process imminently. This will mark a transition to the second phase of the rulemaking for our Employers Heat Illness Prevention Coalition, which will continue through issuance of the Notice of Proposed Rulemaking (“NPRM”). During this Phase Two of our Coalition work, we will work with the Coalition to identify and put forward to SBA 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. We also will analyze and report on the SBREFA package shared with the SERs, and summarize the SBREFA process throughout.
We invite our current Coalition members to re-up their participation for this critical phase of the rulemaking, and we welcome new members to join with us to participate in this next phase of the rulemaking, as well. Expanding the scope of the Coalition can only serve to strengthen its voice for this next vital rulemaking phase.
If your organization is interested in continuing to participate in our Employers Heat Illness Prevention Coalition during this next critical phase of the heat rulemaking, please let me know as soon as you are able.