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How Can Employers Beat the Heat This Summer?

Now that the full force of summer’s heat is upon us, employers need to be aware of OSHA’s new enforcement initiative regarding heat-related workplace hazards. The initiative will be one of the agency’s top priorities after Covid-19 and will scrutinize both indoor and outdoor workplaces for dangers due to extreme heat.

OSHA announced on April 12, 2022 that it has implemented a new National Emphasis Program (NEP) focusing on heat related illnesses and injuries. An NEP is a temporary program focusing OSHA’s resources on particular hazards in high hazard industries.

Currently, OSHA does not have any specific standard addressing heat hazards but relies on the general duty clause to cite employers for heated related injuries and illness. OSHA has published an Advance Notice of Proposed Rulemaking for heat injuries, so permanent standards are most likely imminent but take time, in some cases ten years to enact. To ensure greater compliance while permanent standards are created, OSHA has enacted the “Outdoor and Indoor Heat-Related Hazards” NEP. https://www.osha.gov/sites/default/files/enforcement/directives/CPL_03-00-024.pdf.

The NEP will result in prioritized on-site inspections when complaints or hospitalizations/ severe injury reports are made regarding heat related injuries. Informal rapid response investigations will be used in limited circumstances and subject to Are Director’s approval. The NEP also lays out a randomly generated inspection list for employers within certain industry codes covered under the NEP. Area offices can also add entities to the random list if not already included based on industry. So, what does this mean exactly for employers?

Programmed Inspections

The goal of the NEP is to reduce or eliminate exposure to heat-related hazards resulting in illnesses, injuries and death. The NEP plans to do this by targeting certain industries where workers are most at risk of heat exposure and inadequate protection such as cool water, cool resting areas, training and acclimatization. Acclimatization is the body’s ability to build tolerance to the heat. Most heat related illnesses occur within the first few days of exposure to heat due to the lack of proper time to build a tolerance. High Haszard Industries listed within the NEP can expect programmed inspections by compliance safety health officer (CSHOs).

In addition, CSHOs who are investigating a site for other purposes, shall open or refer the site for a heat related programmed inspection for any hazardous heat conditions observed. Programmed inspections will occur on any day the National Weather Service (NWS) announces a heat warning or advisory for the local area. Referrals can also come from the Wage and Hour Division (WHD) of the Department of Labor when the weather is hot or a heat alert has been issued for an area where the WHD is investigating. NWS uses a heat index to classify environmental heat into four categories: Caution 80°F – 90°F, Extreme Caution 91°F – 103°F, Danger 103°F – 124°F, and Extreme Danger 126°F or higher. When the heat index is 80°F or higher, serious occupational heat-related illnesses and injuries become more frequent.   

Unprogrammed Inspections

Unprogrammed inspections receive highest priority under the NEP. Unprogrammed inspections include investigations into fatalities/catastrophes, complaints, or referrals. These can be made for any general industry, maritime, construction, or agriculture operation alleging hazardous exposures to heat both outdoors and/or indoors, regardless of whether they are included on the NEP’s high-hazard list of industries.

What should you expect during an inspection?

The NEP utilizes OSHA Field Operation Manuals and OSHA Technical Manual to establish procedures for inspections. The following is a summarization of things that can be expected during an inspection. 

• The CSHO will review OSHA 300 Injury and Illness Log and 301 Incident Reports for entries indicating heat-related illnesses;
• interview workers for symptoms of headache, dizziness, fainting, dehydration, or other conditions that may indicate heat-related illnesses;
• document the heat index and weather information from the day of the inspection;
• gather information regarding shaded work areas, cloud cover, rest areas, and protective equipment;
• identify activities that may be linked to heat-related hazards; including employee workloads, bodily exertion, whether they are working in direct sun-light or near hot objects like a furnace or boiler; and
• determine if the employer has a program in place addressing heat illness and injuries due to heat exposure.

What happens after the inspection?

If a CSHO finds there is sufficient evidence of a violation, they may either issue a General Duty Clause, Section 5(a)(1) citation or a Hazard Alert Letter (HAL). All elements of a GDC violation must have been established in order for a citation related to heat-related hazards to be issued. If all elements have not been established, a Hazard Alert Letter will be issued instead.

A follow-up inspection may be required in order to determine compliance. Additionally, sites that are inspected as a result of a fatality or serious injury, will receive a follow-up inspection to determine if abatement was implemented and to monitor the effectiveness of the NEP. It’s important to note, that if you have multiple worksites a citation or HAL for one worksite can serve as notice for all other worksites of a violation. Therefore, another violation a subsequent worksite can result in willful violation.

What Can Employers do?  

The NEP establishes certain factors that will be considered when evaluating an Employer during inspection. First, they will look for a Heat Illness and Injury Prevention Program. OSHA provides Employer’s with resources on their topics page, here https://www.osha.gov/heat/employer-responsibility.

Then the program itself will be evaluated based on the following criteria:

• Is the program written?
• How did the employer monitor ambient temperature(s) and levels of work exertion at the worksite?
• Was there unlimited cool water that was easily accessible to the employees?
• Did the employer require additional breaks for hydration?
• Were there scheduled rest breaks?
• Was there access to a shaded area?
• Did the employer provide time for acclimatization of new and returning workers?
• Was a “buddy” system in place on hot days?
• Were administrative controls used (earlier start times, and employee/job rotation) to limit heat exposures?
• Did the employer provide training on heat illness signs, how to report signs and symptoms, first aid, how to contact emergency personnel, prevention, and the importance of hydration?

Employers should asses the working environment both indoors and outdoors and establish a Heat Illness and Injury Prevention Program keeping the above in mind and ensure that all employees are adequately trained and aware of the program. Employer’s can also utilize the Heat Safety Tool App https://www.osha.gov/heat/heat-app to check weather forecasts and heat index for their worksite.

Conclusion

Enforcement under this NEP is still relatively new and defenses to citations are pending. Any questions, concerns, or requests for assistance in compliance or more information can be directed to Emily Paisley or Meredith Ullman.