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). Continue reading
By Eric J. Conn and Beeta B. Lashkari
OSHA’s rulemaking for an outdoor and indoor heat illness prevention rule continues to chug along, so we wanted to provide a quick review of the latest developments. Of particular note, two meetings of the National Advisory Committee on Occupational Safety & Health (NACOSH) focused on heat illness and the heat illness rulemaking were held on June 30th. Conn Maciel Carey’s Employers Heat Illness Prevention Coalition participated in both.
Here is a copy of the as-filed comments we submitted to OSHA in advance of these NACOSH meetings, reiterating our previously submitted comments, and requesting to speak at the June 30th NACOSH meeting (which request was granted).
The meetings were well attended by NACOSH committee members and OSHA staff, and included appearances from Andy Levinson (Acting Director, OSHA Directorate of Standards and Guidance), Lisa Long (Acting Deputy Director, OSHA Directorate of Standards and Guidance), Carla Marcellus (Office of Maritime and Agriculture), and Jennifer Levin (Committee Counsel, Office of the Solicitor). Kate McMahon and Beeta Lashkari attended on behalf of our Coalition. The first meeting was for public listening only, and Kate was one of only two public stakeholders who spoke at the second meeting, and the only employers’ representative to do so.
Here are the key takeaways from the two meetings, as well as a summary of the public statements we made to the NACOSH committee: Continue reading
By Eric J. Conn, Chair of Conn Maciel Carey LLP’s National OSHA Practice
While we and employers across the nation have been focused on OSHA’s issuance of its second COVID-19 emergency temporary standard in six months, earlier this month, OSHA published in the Federal Register an Advanced Notice of Proposed Rulemaking initiating a new formal rulemaking focused on “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings” (the ANPRM). The ANPRM provided this summary of OSHA’s action:
“OSHA is initiating rulemaking to protect indoor and outdoor workers from hazardous heat and is interested in obtaining additional information about the extent and nature of hazardous heat in the workplace and the nature and effectiveness of interventions and controls used to prevent heat-related injury and illness. This ANPRM provides an overview of the problem of heat stress in the workplace and of measures that have been taken to prevent it. This ANPRM also seeks information on issues that OSHA can consider in developing the standard, including the scope of the standard and the types of controls that might be required.”
And while everyone still has most of our focus on OSHA’s Vaccination, Testing, and Face Coverings emergency temporary standard, it is critical that those industries and employers potentially impacted by an OSHA heat illness regulation focus on this important active agency rulemaking. In fact, long after COVID-19 is a just bad memory in the rearview mirror, a heat illness standard will have lasting and potentially enormous impacts on your organization.
To that end, Conn Maciel Carey LLP is organizing a new fee-based coalition of employers and trade groups to participate in OSHA’s Indoor and Outdoor Heat Illness Rulemaking with a goal of helping to shape any heat standard that OSHA ultimately promulgates in such a way that the rule is palatable to Industry. Continue reading