Summer Is Scorching, Why OSHA Has No Worker Heat Rule: Explained

When temperatures surpassed 100 degrees earlier this summer across the western and central US putting 180 million Americans under a federal heat alert or warning, Democratic lawmakers and labor advocates called on the Occupational Safety and Health Administration to act.

But OSHA has been working on a heat stress rule, starting in 2021, following a decade’s worth of advocacy groups and politicians calling for action. Supporters of a rule cite a changing climate and worker heat-related deaths as drivers of their concern.

Outside of the rulemaking, the agency has been conducting an annual heat awareness campaign since 2012 and enacted a heat enforcement program in 2022.

The challenge for OSHA is that the rule’s requirements will have to be precise, as just saying an employer knows when it is hot enough to take precautions won’t pass a court review. The road to developing specific requirements is also filled with regulatory traffic lights.

1. Can OSHA move faster?

By OSHA’s own account, the agency must go through 46 steps to enact a rule, 39 of which are dictated by laws passed by Congress or White House executive orders.

According to OSHA, the heat rule is at step 20—conducting a small business review, a requirement set by law that all significant OSHA rules must fulfill.

That OSHA rulemakings move slowly isn’t a new phenomenon. The Government Accountability Office in 2012 found that on average OSHA took seven years to issue a standard.

Labor advocates have called for OSHA to use the speedier process for issuing an emergency temporary standard, a pathway that avoids, at first, seeking and reviewing public comments.

However, employer groups would be sure to challenge an emergency standard, noting that OSHA has for a decade issued voluntary heat guidelines. They may argue heat doesn’t qualify as a new, grave threat that would justify such intervention.

2. Would indoor or outdoor standards come first?

Working conditions for indoor and outdoor workers vary considerably, but OSHA is attempting to regulate both at same time rather than first issuing either an outdoor or indoor rule (RIN:1218-AD39).

OSHA’s refrain of “water, rest, shade” fits for outdoor workplaces such as construction sites and farms, but doesn’t necessarily translate well for workers inside warehouses, kitchens, and industrial laundries with no air conditioning.

The expansive scope of OSHA’s proposed rule means conducting scientific and economic analyses for a wide range of industries and then writing a common set of requirements for protecting workers.

It’s not a simple undertaking. The California state version of OSHA enacted its first heat standard for farm workers in 2005 and has been developing an indoor rule since 2016. Officials don’t expect to release that rule until early 2024.

3. When is it hot enough to trigger protections?

For regulators, a confounding part of a heat stress regulation is deciding which temperatures trigger requirements for employers.

OSHA has been silent on this issue. An OSHA advisory panel that included business and union representatives declined to address it when issuing heat policy recommendations in May.

For outdoors, states with heat rules have generally set 80 degrees or an 80-degree heat index as the trigger temperature.

Oregon and Washington require additional action at 90 degrees, while Cal/OSHA set the bar at 95.

For indoors, Washington and Oregon also went with 80 degrees. Discussion drafts of Cal/OSHA’s rule set the indoor limits at 82 or 87 degrees, depending on the heat sources and whether cooler, lighter clothing can’t be worn.

Minnesota’s indoor heat rule uses temperatures based on the physical intensity of the labor: heavy, 77 degrees; moderate, 80 degrees; and light, 86 degrees.

4. What might OSHA require in a heat rule?

OSHA could mandate that employers have a written heat stress prevention program, according to its 2021 rule proposal. Studies of OSHA heat enforcement cases found most cited employers didn’t have a hot weather plan or train workers about heat stress.

Under a plan, indoor employers could alleviate heat concerns by improving ventilation, increasing air conditioning, and insulating heat sources.

Outdoors, workers would need regular access to shade, paid time to rest, and cool water.

A key component may be allowing workers to become accustomed to laboring in hot weather—acclimatization. Studies mentioned in OSHA’s rule proposal suggested a worker needs at least five days to adjust to hot temperatures and that laborers starting acclimatization shouldn’t work a full shift in hot conditions.

Employers have countered that acclimatization shift restrictions could lead to temporary workers not being hired. Another concern is that phasing in workers isn’t practical for worksites where workers can’t be rotated between hot and cooler daily assignments.

Regulators also will have to consider that heat affects everyone differently. In past enforcement actions, OSHA has suggested employers be aware if workers have medical conditions that make them more susceptible to heat stress.

But some employers see the issue as raising medical privacy concerns and opening the door to disability and age discrimination allegations.