By Eric Conn, Kate McMahon, and Beeta Lashkari

On Friday, May 19, 2023, OSHA presented at the Small Business Administration’s (“SBA”) Small Business Labor Safety (OSHA/MSHA) Roundtable about OSHA’s Heat Illness Rulemaking.  At the meeting, OSHA reported about the status of the rulemaking, including the heat working group’s (as led by sub-group two) recommendations regarding potential elements of a standard, as we describe below (see “NACOSH Heat Working Group Meeting” section below).  OSHA also gave an update on its work regarding changes to its compliance materials, which are in line with the heat working group’s (as led by sub-group one) recommendations made to the full NACOSH committee, and then from the full NACOSH committee to OSHA, earlier this year.

Importantly, just as we predicted, during the SBA roundtable meeting, OSHA stated that it is working diligently to pull together materials to initiate the SBREFA process as soon as possible, and when asked about the timing of issuance of the final standard, specifically, whether that will not happen until 10-12 months at the earliest, OSHA stated that the SBREFA process will be happening very soon, and that the heat injury and illness prevention rulemaking is a high priority for this Administration.

As we mentioned previously, we have officially moved into what we are calling Phase 2 of the rulemaking, which covers all advocacy and information-sharing from today (the start of the SBREFA process) through issuance of a Notice of Proposed Rulemaking (“NPRM”).  Here are some of the benefits that coalition members will realize during Phase 2:

• The biggest benefit from participating in our coalition is having a seat at the table with the rulemaking, and getting to share input with the agency in a manner that is employer-anonymous, but still highly credible.

• • First, we identify our group by industries and the number of employers and the size of workforce represented, which allows individual employers to provide specific input about proposed regulatory text on an organization-anonymous basis.
  • Second, because of the size of the group of employers and trade associations included in our coalitions and our history of constructive work on OSHA rules, we have significant credibility with OSHA in the rulemaking process.  We speak as the “reasonable” employer group that wants to help OSHA develop the most reasonable, effective regulation possible.  As a result, we saw quite a bit of regulatory text we presented to OSHA and OMB in written comments from our COVID-19 rulemaking coalitions adopted exactly as-recommended.

• In addition, our coalition identifies every opportunity to advocate for our coalition members’ interests; i.e., this effort is much more fulsome than just submitting written comments in response to an NPRM, including continuing to speak at all of the NACOSH heat illness meetings, including what we presume will be the full NACOSH committee’s last meeting before the SBREFA process starts, where we will advocate for industry’s positions regarding potential scope and elements of a heat injury and illness prevention standard, as recommended by NACOSH’s heat working group.  As you can imagine, the heat working group presented some potentially very burdensome, unworkable elements (e.g., ventilation; scheduled mandatory rest breaks; adjusting metabolic workloads; cooling vests; environmental monitoring; rigid acclimatization schedules; etc.) in their recommendations.

• A major benefit during this phase will be participation in the SBREFA process even as a non-small business.  We will be putting forward at least one small entity representative (“SER”) from among our coalition members to participate in the SBREFA process, which will allow all members of the coalition to get a first look at proposed regulatory text or something close to it (as part of the SBREFA package), and the ability to provide input into the talking points and written comments for our coalition’s SER(s), which is the best opportunity left to influence this rulemaking.

• Coalition members will also benefit from our analyses and updates to our coalition members about the SBREFA package of materials, which typically includes:

• • background documents, including legal basis for the rulemaking, existing standards/guidance, costs analyses, detailed descriptions of approaches to crafting a standard and alternatives, and a breakdown of entities likely to be affected by the rule;
  • an issues document, including specific questions for SERs to consider regarding different approaches to crafting the standard and alternatives, as well as justifications and potential impacts;
  • an issues presentation, providing an overview of the issues document;
  • ANPRM/RFI information, including the full docket of comments; and
  • other relevant resources.

• We will be managing the SBREFA meetings with talking points and submitting written comments to the SBREFA review panel.  This is critically important because this will influence the ultimate SBAR panel report that is produced at the conclusion of the SBREFA process.  The panel’s primary role is to report on the comments of the SERs and its findings as to issues related to small entity impacts and significant alternatives that accomplish the agency’s objectives while minimizing the impact on small entities.  The report will contain recommendations for OSHA on its analysis and on possible approaches to regulatory action that may minimize impacts on small entities.  Of course, while focused on small entities, the report has significant implications for industry as a whole.

• We will continue to provide detailed educational and informational updates to our coalition members, including summarizing the SBREFA process and package, reports out of the NACOSH meetings, and any other major developments in the rulemaking.  We keep our eyes and ears open to all rumblings about the rulemaking, and make timely reports out to the coalition.  These reports often include behind-the-scenes information, as well as our informed predications about timing, content, next steps, as well as recommendations.

• We will also continue to look for opportunities to advocate on the Hill and with key agency decisionmakers directly, wherever possible.

Again, 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.

NACOSH Heat Working Group Meeting

The Heat Working Group of NACOSH met on April 27, 2023, and, as we expected, presented its specific recommendations (considerations, best practices, and additional resources) on potential elements of a Heat Injury and Illness Prevention standard.  At the start of the meeting, there were over 350 participants (one of the larger crowds for these meetings).  OSHA’s Directorate of Standards and Guidance kicked off the meeting by reviewing the charge tasked to this sub-group, which we named the “Rulemaking Work Group.”  As a reminder, the Rulemaking Work Group was tasked with critically evaluating stakeholder input into the Heat Injury and Illness Prevention Advance Notice of Proposed Rulemaking (“ANPRM”) and developing key recommendations on potential regulatory elements of the heat injury and illness prevention rulemaking that OSHA should consider.  This was the main focus of the April 27 meeting.

At the April 27 meeting, the Working Group Co-Chair, and leader of the Rulemaking Work Group, presented its Draft Report for NACOSH.  By the end of the meeting, the Working Group unanimously voted to move the report forward to the full NACOSH committee, with the following four tweaks:

1. Adjusting any mandatory (“must”) language in the draft report to permissive (“should”) language.  This was described as an inadvertent error in the document.
2. Including additional language about considering and taking into account climate/environmental variability in risk assessments.  This was prompted by comments provided by the NACOSH representative.
3. Referencing the first sub-group’s work related to the intake of water and other fluids that can safely be consumed for purposes of hydrating.  This was prompted by comments provided by the NACOSH representative, who noticed that the draft report appeared to focus primarily on water, rather than on water and other hydrating fluids.
4. Adding to the additional resources section a reference to a publication from a Working Group member regarding regional approaches to thinking about extreme heat.

The draft report includes many elements that we expected OSHA might consider in developing its Heat Injury and Illness Prevention standard, including, but not limited to:

1. Written Exposure Control Plan / Heat Illness Prevention Plan

1. • Hazard assessment by work task (environmental conditions, heat sources, PPE, workload, work intensity, etc.)
   • Identification of control measures by work task
   • Procedures for high v. extreme heat
   • Procedures for emergency preparedness and response (location of employees, immediate first aid, immediate cooling, etc.)
   • Plan administrator (responsible/competent person)
   • Plan re-evaluation (at least annually, and after adverse/sentinel events)
   • Employee participation (development and evaluation)
   • Plan accessibility

2. Training 

• • Application to employees and supervisors
  • Formats (graphical representation, adult learning methods, culturally appropriate references)
  • Non-mandatory appendix for training guide
  • Frequency (annually (springtime), entry, re-entry, smaller refresher training every several months)
  •  Topics
    • Hazard identification (work environment, assessment methods, risk factors (medical, PPE, etc.), NIOSH heat index app)
    • Prevention measures (controls, acclimatization policy/procedures, hydration, rest breaks, monitoring, anti-retaliation)
    • Reporting heat-related events
    • Emergency preparedness and response (sign/symptoms, monitoring, first aid procedures, coordination, communication, location information, trends analysis, drills, “hero syndrome”)

3. Environmental Monitoring

1. • Onsite temperature monitoring systems (temperature and heat index)
   • Threshold triggers and stop work authority
   • Employee participation
   • Communication
   • Heat waves
   • Lone/remote employees
   • Heightened monitoring during acclimatization period
   • Variability
   • Workplace-specific

4. Workplace Controls

1. • Engineering controls

• • • Ventilation
    • Exhaust fans
    • Portable engineering controls (portable fans, tents, shielding/insulation, proactive misting)
    • Industry-specific (e.g., isolating steam leaks from employees, building engineering, etc.)

1. • Work practice controls

• • • Coolers with ice
    • Chasing the sun
    • Compliance with local ordinances that do not allow work to start until a certain time in the morning, when it is already warming
    • Scheduled, mandatory rest breaks
    • Cooling cabs/vehicles

1. • Administrative controls

• • • Rotating employees
    • Adjusting metabolic workload
    • Communication
    • Industry-specific (corporate accounts, buddy system)

1. • Personal Protective Equipment

• • • Cooling vests
    • Industry-specific (clean suits with vortex for heat controls)

5. Acclimatization

1. • “Work hardening programs” (increased intensity over a period of 7-10 days)
   • Return-to-work procedures (not just new employees)
   • Monitoring / observation
   • Sudden heat waves

The Draft Report (with the four tweaks set forth above) was approved to be presented to the full NACOSH committee at the May 31 meeting.

Note that the Working Group also presented an Excel spreadsheet that contains a grid developed by the Working Group of existing (Tab 1) and proposed/draft (Tab 2) standards and other frameworks for controlling occupational heat exposure.

Assuming that the full NACOSH committee votes to approve the draft report, which we expect, it will then go to OSHA for consideration as it develops its proposed rule. 

Again, 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, or if you have any questions, including about the fee to participate in the coalition, please let me know as soon as you are able.