OSHA Proceeds with Heat Illness Prevention Rulemaking
ILTA participates in the Employers Heat Illness Prevention Coalition, which is overseen by the law firm Conn Maciel. Conn Maciel has prepared the following update on discussions with OSHA pertaining to this rulemaking.
Two National Advisory Committee on Occupational Safety & Health (NACOSH) meetings occurred on June 30th, both of which focused principally on OSHA’s plans for Heat Illness Prevention. 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:
Work Group Meeting: The first meeting was a meeting of NACOSH’s Heat Injury and Illness Prevention Work Group (“Work Group”). As a reminder, the Work Group is meant to ultimately present its written findings and recommendations for consideration by the full NACOSH committee. The full NACOSH committee has the authority to adopt all or some of the proposed findings and recommendations developed by the Work Group, with or without modification, and to present those findings and recommendations to OSHA. Alternatively, the full committee may decline to make any recommendations to OSHA.
At the meeting, the Work Group explained that it has split-up into two subgroups – one addressing Task 1 of the Charge to the Work Group – evaluating and providing input and recommendations on OSHA’s heat illness prevention compliance assistance materials – and the other addressing Task 2 – developing key recommendations on potential elements of a Heat Injury and Illness Prevention standard that OSHA should consider in its open rulemaking. Neither group had specific recommendations to present to the full NACOSH committee at this time but provided a progress report on their research and preliminary findings. This was the first time the two subgroups met together to compare their respective results. Here are the key highlights:
Subgroup/Task 1 (Heat Illness Prevention Materials): The first subgroup met five times from mid-April to mid-June, and shared the following:
Communication Strategies: The subgroup stated that train-the-trainer, as well as worker designated apps (e.g., downloadable toolbox talks with best practices on heat illness prevention), might be helpful for OSHA to consider.
Gaps: The subgroup shared that, while there are many resources for construction and agriculture, materials appear to be lacking for warehouse and manufacturing settings. Additionally, there is no real information on fluctuating weather conditions, and critical information appears to be lacking regarding hot heat effects on other illnesses (e.g., COPD, mental wellbeing, etc.), which could lead to other types of incidents.
At-Risk Workers: The subgroup reviewed how OSHA’s materials are being accessed and whether they are accessible to all. It found that OSHA could broaden its reach, for example, by sending targeted mailings, and providing materials at farmers markets, cooling centers, secondary schools, and near agricultural sites.
Alignment With Best Practices: The subgroup found some inconsistencies, and that certain updates were not communicated across all materials. It also expressed that it felt it important to conduct technical reviews and evaluate any new scientific research (e.g., in areas such as physiological monitoring, acclimatization, caffeinated beverages, energy drinks, cooling mechanisms, etc.).
Industries: The subgroup states that some industries that could benefit from more tailored guidance include, generally, those in indoor settings, such as janitorial, property service, warehousing, and laundry. Additionally, the subgroup provided that mobile settings, such as waste recycling, delivery, disaster responders, railyards, transportation workers, and first responders, could benefit from more tailored guidance.
At the end of its prestation, the subgroup shared an overarching theme it feels is important for OSHA to consider – that OSHA should reference in its materials the fact that employers have a responsibility to protect workers. The subgroup concluded by stating that it has no specific recommendations to make to the full NACOSH committee at this time. As next steps, the subgroup plans to set priorities and, to the extent it decides to make any recommendations, to develop those recommendations and ensure they are actionable (i.e., specific actions that OSHA can take).
Subgroup/Task 2 (Heat Illness Prevention Rulemaking): The second subgroup split its presentation in two sections: (1) examining existing standards and other resources; and (2) elements of existing standards and resources.
Existing Standards/Resources: The subgroup described some of the existing standards and resources that it is examining, including, but not limited to: Minnesota (indoor only); Oregon; Washington; Colorado; Nevada; California (outdoor only); California draft (proposed indoor); Virginia draft (previous); US military (Army, Navy, Marine Corps); Worksafe BC; ACGIH TLV; ASHRAE Air Quality in Commercial Aircraft; ASTM Managing Heat Stress in Foundries; draft ANSI A10.50; and NIOSH Recommended Heat Standard and Health Hazard Evaluation Information.
Elements of Existing Standards/Resources: The subgroup presented some common elements of existing standards/resources, including, but not limited to: scope and application; employer and employee responsibilities; temperature measurement requirements; radiant heat / work load / clothing / other contributing risk factors; heat illness prevention plan; employee participation; engineering controls; administrative controls; PPE; worker training/information; supervisor training/information; acclimatization; scheduled breaks; access to shade / cool down areas; drinking water / hydration; medical monitoring/surveillance; high heat procedures; extreme heat procedures; emergency response; and recordkeeping. The subgroup admitted that the specifics of these elements may vary from standard/resource to standard/resource, and that those specifics are an area the subgroup plans to analyze going forward.
Although the public was in listen-only mode, Work Group members asked questions of each other. When a concern was raised about any requirement in OSHA’s rule for a specific method for measuring temperature, Mr. Levinson answered that OSHA is not constrained to use just one method; for example, OSHA can provide for a variety of different methods (e.g., ambient temperature, heat index, WBGT, and wearable biomonitoring devices), taking into account different safety factors based on the method used. In this way, Mr. Levison acknowledged that companies may have different levels of sophistication, allowing them the flexibility to comply in different ways.
The Work Group meeting concluded with the two subgroups agreeing they will continue to meet and develop their findings, and that their work (and ultimately their recommendations) should be aligned. Ms. Long announced that OSHA is still summarizing the 1,000+ comments it received from the ANPRM, and that the next NACOSH meetings will take place on September 13, 2022.
Full NACOSH Meeting: The second meeting was the full NACOSH committee. Here are the key highlights from this meeting:
OSHA Update: Mr. Levinson provided a quick overview of some of the recent activities on the OSHA regulatory front, stating:
Last week, the regulatory agenda for Spring 2022 was released. It provides updated timeframes on rulemaking activities.
As for heat illness prevention, analyzing the record is the next regulatory agenda item that is scheduled. Mr. Levinson also described that OSHA is doing a lot of work on heat as part of the Safe + Sound campaign, as well as on safety and health management systems, including a maturity model (or step-by-step guide), which, at an entry level, is supposed to instruct on how to implement a full safety and health program. This will be available online in mid-August, and stakeholders can provide comments/feedback. At the end of the step-by-step guide, the program should be one that employers can be submitted for VPP/SHARP/ANSI/ISO certification. The concept of the maturity model is based on a continuum where the user is taught to “crawl, walk, run, then leap.” There are 30 different dimensions of a safety and health management program (e.g., worker participation, finding/fixing hazards, etc.), and this is Level 2 across all 30 of those dimensions. Mr. Levison also stated that there will be more work in safety culture/management from OSHA in the coming years.
OSHA Heat Updates: OSHA staff then presented on updates to the heat illness prevention campaign, OSHA heat stakeholder meeting, and progress on ANPRM comment analysis. We have previously shared many of the updates on OSHA’s heat illness prevention campaign (see email below) and the OSHA heat stakeholder meeting. As for an update on the ANPRM comment analysis, OSHA first provided a brief history of the rulemaking (i.e., the ANPRM was issued in October 2021; comments were due in January 2022; OSHA asked 100s of questions in the ANPRM) and shared that it is going through the comments now and analyzing the record. Specifically, it provided that OSHA received 1,078 public comments from various types of stakeholders, and shared the following:
A pie graph depicting the count of comments by commenter type. A large majority (745) were from private citizens. 322 were received by associations/organizations; 53 from industry; 32 not specified; 16 state/local governments; 16 unions; 15 academia; and 8 from federal government.
A bar graph depicting the count of industry categories. Nearly 450 comments were from industries not specified; over 300 from restaurants / food service; about 125 from multiple industries; about 125 from agriculture; and about 100 from industries other than those previously listed, or from warehousing, retail/hospitality, oil/gas, manufacturing, landscaping, foundry, delivery / postal service, or construction, for which OSHA received less than 50 comments each.
A bar graph depicting the count of work settings. Over 400 comments were received regarding outdoor work settings; nearly 350 for indoor work settings; about 275 not specified; and nearly 200 addressed both indoor and outdoor work settings.
OSHA concluded its presentation by stating that the agency is now in the process of analyzing the topics and content of each comment that was submitted.
Work Group Update: The two Work Group subgroups then presented their progress reports (again, without any formal recommendations) to the full NACOSH committee. The presentations largely tracked those in the earlier Work Group meeting. See “Work Group Meeting” section above.
Public Comments: After discussing logistics and potential topics for upcoming NACOSH meetings, the meeting was opened to public comment where Kate was the first (and only) person to speak on behalf of employers. Speakers were asked to keep their comments to 3-5 minutes. Kate (re)introduced the Coalition with the goal of laying the groundwork for continuing communication from us. Kate explained that the Coalition is interested in working cooperatively throughout the rulemaking process to help OSHA develop a sound and reasonable standard that protects against heat illness. We wanted to put a marker down that our Coalition is interested in ensuring that any Heat Illness Standard OSHA decides to promulgate is one that is workable for employers. Kate referenced the comments we submitted to the docket on the ANPRM, as well as those submitted in advance of the February 2022 NACOSH meetings, and also highlighted two top priorities for employers, specifically:
The standard should not require use of biomonitoring devices. Kate explained that there is not a full understanding of the benefits and downsides associated with such devices, and that, while there could be potential use for such technologies in the future, employers are concerned at this stage about any required use of them to detect/monitor heat, not only from an economic/technological feasibility standpoint, but also from an employee relations standpoint as many employees are expected to push back against use of such devices. The use of such tools would quickly get into areas of employee privacy, and employees will resist.
The standard should be performance-oriented and provide flexibility for employers. Kate reminded the NACOSH committee that we made this point during the first NACOSH committee meeting in February. The Coalition, like OSHA, supports ensuring its employees are protected from heat illnesses, but we want to make sure any rule promulgated is not overly complicated (i.e., that it centers around water, shade, flexibility in exertion, and training), and that it be performance-based, with flexibility provided to employers.
OSHA announced that the next NACOSH meeting, which should coincide with the next Work Group meeting, is scheduled for September 13, 2022.