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It’s been a hot summer.
The US has it has faced multiple heat waves. Monday was the hottest day ever recorded on the planet, surpassing the record set just the day before, AP News reported. For many workers, this means working in harsh climates.
It has also been a summer full of new developments in politics and regulations.
On July 2, OSHA published a proposed rulea standard formed quickly, compared to previous rules, in response to rising temperatures. It aims to better protect indoor and outdoor workers in all industries from extreme heat.
But just a few days before, the The Supreme Court struck down the Chevron doctrine, which required federal courts to give deference to the reasonable interpretation of ambiguous federal agency statutes. This development led many to question whether OSHA could even enforce a heat rule, should it be challenged. However, SCOTUS refused to hear a challenge to OSHA’s authority on July 2, USA Today reported.
Meanwhile, this fall’s presidential election could also call into question the adoption of the proposed heat rule. Should former President Donald Trump win, he could stop the standard when his own cabinet takes over, multiple sources told Construction Dive.
While these developments look like they could be an impediment to the new rule taking effect, legal experts say it’s still important regardless of whether it’s finalized.
“I think there are a lot of legal, sound, good reasons that this will never take effect, but my opinion is what?” said Phillip Russell, OSHA and labor attorney, litigator and counsel at the Washington, DC-based firm Ogletree Deakins. “My perspective on this is that the content of this proposed rule has useful information for employers right now.”
Regardless of what happens with the OSHA heat standard, the text is a resource that contractors can use to strengthen their safety practices. The best course of action now, attorneys told Construction Dive, is for construction professionals to familiarize themselves with the rule, write or update a company’s thermal safety plan based on the proposal, and follow it.
What’s in the proposal?
According to the proposed rule, employers must have a Heat Injury and Illness Prevention Plan. This plan would go into effect for a heat trigger, when temperatures reach 80 degrees F or a wet-bulb globe temperature equal to NIOSH Recommended Alert Limit. The rule also calls for more action to protect workers from a high heat trigger, when temperatures reach 90 degrees or higher.
Requirements within this HIIPP include initial worker training, access to water and shade, a designated heat safety coordinator, and clear communication of the plan in all languages spoken at work.
In addition, the rule says that new workers or workers who are not used to the heat must be given time to acclimatize to the high temperatures. That’s one reason the rule will likely face challenges, said Will Burton, a Greensboro, N.C., partner at the Philadelphia-based law firm Fox Rothschild.
Russell also noted that employers might question the science behind acclimation, along with temperature triggers.
Additionally, one section of the rule states, “The employer must allow and encourage employees to take paid breaks … if necessary to prevent overheating.” Russell called this “problematic from a legal perspective.”
There’s also a question, Russell noted, about whether heat falls under OSHA’s purview to ensure employers provide a safe workplace or whether it’s a broader health issue.
Still, the rule is a valuable resource, lawyers say.
“I think any employer should go ahead and comply with whatever the proposed rule is,” said Ashley Brightwell, a partner in the labor and employment group at Atlanta-based Alston & Bird.
Compliance with the heat
For more than two years, OSHA has had a national emphasis program to reinforce its “Water, Rest, Shade” guidance for workers in high temperatures. Under the agency’s General Duties Clause, employers are required to provide workers with a hazard-free environment, and to this point, the heat has fallen short of that.
That meant a lack of specificity, Brightwell said. Of course, employers know they need to protect workers from the heat. But exactly how OSHA expects them to do that hasn’t been entirely clear.
“In many ways [the proposed rule] it’s been a positive development,” he said. “There’s been all kinds of confusion about what’s required and discrepancies in when OSHA is going to cite and what it’s going to cite for.”
Brightwell called the proposed rule “a good road map” for employers to use in developing their own heat safety plan. At the very least, he said, companies have a better sense of what OSHA expects of them when it comes to protecting workers from the heat.
Burton said the agency published the rule in a different way than usual.
“At this point OSHA has essentially taken the unusual step of publishing a preview of a rule before it is published in the Federal Register,” he noted. “OSHA already has some level of authority to regulate [heat] under the general duty clause. It would be wise to take appropriate precautions at some level because heat-related considerations are part of your overall safety plan, even if the rule never ends.”
Burton noted that rising summer temperatures won’t just go away, and neither will OSHA, which will likely still use the General Duties Clause if the proposal is not adopted.
Russell, whose office is in Florida, said he has active heat inspections right now. The 80-degree temperature threshold would mean a large portion of workdays in the state would fall in the HIIPP zone.
“I’m already seeing these questions from compliance officers,” Russell said of his clients. “How this is helpful is that employers who want to understand how OSHA will handle heat inspections today should look at the NEP and the proposed standard.”