OSHA Nears the End of the SBREFA Phase of its Outdoor and Indoor Heat Illness Prevention Rulemaking

By Eric J. Conn and Beeta B. Lashkari

For the better part of 2023, OSHA has been working through the Small Business Regulatory Enforcement Fairness Act (SBREFA) phase of its rulemaking to produce an Outdoor and Indoor Heat Illness Prevention Standard.

The SBREFA process is conducted by a Small Business Advocacy Review (SBAR) Panel composed of representatives from OSHA, the Office of Information and Regulatory Affairs (OIRA) within the White House’s Office of Management and Budget (OMB), and the Office of Advocacy (Advocacy) of the Small Business Administration (SBA). The SBAR Panel’s primary role is to collect input from Small Entity Representatives (SERs) and report and on the comments of SERs and the Panel’s 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. After the SBAR Panel meetings conclude, the panel writes and issues a report, which is delivered to the Head of OSHA for consideration. The report typically includes the panel’s findings and recommendations, as well as the list of SERs, the SERs’ written comments, results of any polling questions asked during the meetings, and the documents provided to the SERs.

SBAR Panel Reports contain recommendations for OSHA on the Panel’s 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.

The SBREFA process for OSHA’s Outdoor and Indoor Heat Illness Prevention rulemaking is nearing its conclusion. The SBAR Panel convened numerous meetings SERs, received significant written comments from those SERs, and last week issued its SBAR Panel Report, formally transmitting it to Doug Parker, Assistant Secretary of Labor for OSHA on November 3, 2023. The 332-page report is linked here and on OSHA’s Heat Injury and Illness SBREFA webpage (see the red banner at the top of the page).

Conn Maciel Carey’s national OSHA Practice organized a broad coalition of employers and trade associations to work on OSHA’s Heat Illness Rulemaking. Two members of our coalition were appointed as SERs, and participated in the last two panel meetings held on September 18 and 19, 2023. With our help, they submitted written comments on October 3, 2023, the date by which OSHA requested SERs submit such comments. Our SERs written comments are linked here.

We have been digging into the SBAR Panel’s report, and are continuing to review it. Preliminarily though, it looks like the SBAR panel really listened to our SERs. Our SERs’ written comments were heavily quoted throughout the SBAR Panel report, and numerous recommendations from the Panel are nearly identical to those reflected in our SER comments:

OSHA’s standard should include performance-based provisions where practical to allow employers to tailor their heat injury and illness prevention program to their setting and situations, including the local climate and the type of work being performed, and also taking into consideration the size and complexity of the employer’s operations. To the extent practicable, the Panel recommends that OSHA offer multiple methods of compliance with provisions of a heat standard.
OSHA should consider whether the heat trigger levels presented in the regulatory framework—both the initial and high heat triggers—are too low, and also recommends that the agency present these heat triggers as simply as possible to avoid confusion. The Panel also recommends that OSHA provide the methodology used to select the heat triggers, including any scientific evidence or other supporting data, along with consideration of potential alternatives.
OSHA should reconsider or simplify recordkeeping of temperature monitoring and not require documentation of rest breaks unless the agency can show that such a requirement is necessary or appropriate to protect workers. The Panel also recommends that OSHA reconsider other potential recordkeeping to determine if those are necessary or appropriate and whether they positively impact worker safety and health.
OSHA should not include a requirement for recording first-aid-only heat-related illnesses or injuries unless the agency can demonstrate some particular circumstances where such a requirement is necessary or appropriate to protect workers when such records are not required under OSHA’s general injury and illness recordkeeping regulation.
OSHA should consider allowing employers some flexibility, to the extent feasible within the constraints of the OSH Act, in the frequency of any rest breaks required in a rule. The Panel also recommends that OSHA clarify where workers can take breaks and provide the maximum flexibility possible to employers to determine what works best for their employees and situation.
OSHA should provide clarity on methods for complying with any potential requirements related to the provision of water and allow for flexibility, when appropriate, in the amount of water required to be provided.
OSHA should provide multiple options for acclimatization in the rule to allow employers flexibility in determining the best method for acclimatizing their workers.
OSHA should include a robust training provision in a heat standard. The Panel also recommends that OSHA continue to provide support for employer training efforts by providing training materials, sample curriculum, videos, and/or other methods.
OSHA should include a requirement for a written heat injury and illness prevention program that allows employers the flexibility to tailor their plans to their specific industry, location, and activities.
OSHA should offer as much flexibility as possible to allow employers to implement engineering and administrative controls that are feasible and appropriate for their workplace and activities.

Stakeholders can comment on the SBAR Panel Report. That would be the last best chance to impact OSHA’s thinking about the Heat Illness Rulemaking before the agency produces a draft regulation and a Notice of Proposed Rulemaking. Written comments about the SBAR Panel Report are due December 22, 2023.