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A second Donald Trump presidency will likely mean the death of The thermal safety standard recently published by OSHAbut it doesn’t necessarily mean no standards are met, experts told Construction Dive.
The agency published the proposed rule and began accepting public comments this summer. This time period will close on December 30th. It would then take several months for OSHA to review all the input, finalize the rule and put it into effect, Phillip Russell, an OSHA and labor attorney, litigator and counsel at Washington, D.C.-based firm Ogletree Deakins, told Construction Dive.
“But obviously it’s going to come on Jan. 20, and I don’t think it’s going to happen,” Russell said.
Ashley Brightwell, a partner in the labor and employment group at Atlanta-based Alston & Bird, called the rule’s completion “highly unlikely” before Biden leaves office. The standard would also face legal and congressional challenges, and the Trump administration could abandon the rulemaking process entirely, he said.
The 1,000-page rule requires a heat injury and illness prevention plan that employers should put in place for a heat trigger, when temperatures reach 80 degrees F or a global wet-bulb temperature equal to the limit d NIOSH recommended alert. Employers would have more requirements to protect workers from an elevated heat trigger, when temperatures reach 90 degrees or higher.
HIIPP mandates would include worker training, access to water and shade, an assigned heat safety coordinator, and clear communication of the plan in all languages spoken at work.
Critics say the details of the standard would make it too burdensome and difficult to implement.
“I think this one was too detailed, too problematic for compliance, I think it set employers up for failure,” Russell said.
However, the lack of a new standard does not mean zero thermal safety requirements. OSHA’s national emphasis program, which reinforces the water, rest and shade creed and increases inspections around heat, remains on the books through April, Brightwell said. In addition, the General Duties Clause requires employers to reduce and respond to hazards, so broadly contractors should ensure that workers are protected in extreme conditions such as high heat.
Brightwell predicted fewer regulatory actions during Trump’s second term. But Russell said the president has more populist support than in his first term, so businesses shouldn’t expect there to be no rules.
“I’m telling customers not to count on there being no standard, but I think it’s reasonable to assume that that standard is DOA,” he said.
