OSHA Receives Thousands Of Comments on Heat Stress Rule: What Employers Had to Say and What’s Next

Members of the public submitted close to 50,000 comments on OSHA’s new proposed limits on heat exposure in the workplace, with many employers expressing concern about the scope and one-size-fits-all nature of the rule. Initially proposed by the Biden administration, the rule would require all employers to take specific actions when the heat index hits 80°F and implement stricter measures when it reaches 90°F, including providing access to water and shaded rest areas. Many expect that the Trump administration will scale back the rule, but the agency has signaled that it is on board with advancing some form of heat illness protection. Business groups warned that a rigid national standard would be unworkable, and that a more performance-based standard was needed to provide more flexibility given the broad differences between worksites, weather conditions, industries, and job duties. Here’s what you need to know about feedback submitted on the proposed rule – and next steps in the process.

Background

The DOL (which oversees OSHA) moved forward with a Biden-era heat stress proposal by holding a summer hearing on what the standard should look like. It then collected feedback in a post-hearing comment period that just wrapped on October 30. The White House regulatory plan clarified that the agency plans to advance a rule that “adequately protects workers, is feasible for employers, and is based on the best available evidence.”

Many of the 47,000 comments were penned by employers or organizations representing businesses, highlighting concerns that the rule is overly burdensome and should either be withdrawn or revised to focus on performance and site-specific needs.

One comment submitted by the Coalition for Workplace Safety – a group of businesses and trade associations – is indicative of other concerns raised by employers in response to the rule. Authored by Fisher Phillips’ Robin Repass, a key member of the firm’s Government Relations and Workplace Safety Teams, the letter encapsulates many of the issues identified by the business community.

“Without the flexibility to tailor heat illness programs based on an employer’s unique use environments, including geography and employee tolerances, a rigid rule carries the risk of being unduly burdensome and cost prohibitive, while failing to effectively protect workers from the specific hazards that would be identified through a site specific and tailored risk assessment,” the letter said.

The group urged the DOL to withdraw the rulemaking “so that it can be significantly revised to reflect a more flexible, performance-based approach.”

What’s in the Rule? There is currently no federal standard requiring employer to take steps to protect workers from heat-specific hazards on the job – although they are required to maintain a safe workplace. The proposed OSHA heat safety rule would make employers take several steps aimed to protect workers from the hazards of excessive heat, including designating a heat safety coordinator and identify heat hazards in both outdoor and indoor worksites. Here’s a non-comprehensive list of what the proposal would generally require employers to do: conduct regular heat risk assessments and audits monitor workplace temperatures ensure workers always have access to drinking water schedule rest breaks in cool or shaded areas to allow workers to recover from heat exposure ensure that shaded or air-conditioned rest areas are available for rest breaks provide heat safety training offer acclimatization programs that gradually increase workloads and exposure time to build up a worker's tolerance to heat develop written heat illness prevention and emergency medical response plans and train staff on those plans maintain written or electronic records of indoor monitoring data create incident reporting processes

What Do Businesses Want?

In comments on the proposal, CWS and other business groups like the US Chamber of Commerce and National Retail Federation urged the DOL to pivot to a performance-based, risk-focused approach, rather than rather than prescriptive, fixed, break and acclimatization timelines. They said a balanced standard would allow employers to:

• Assess heat hazards based on site-specific conditions
• Tailor acclimatization and rest practices to actual worker needs and environmental risks
• Use flexible monitoring strategies, like hazard analyses, training, and customizable controls, including leveraging OSHA’s existing “competent person” framework rather than requiring a dedicated Heat Safety Coordinator
• Utilize alternative cooling methods when providing physical shade is unsafe or infeasible

These types of strategies “would enable more accurate and context-sensitive assessments, promoting the implementation of tailored controls and evidence based practices rather than adherence to a rigid and potentially misaligned time-based threshold,” the National Retail Federation wrote in a comment on the rule.

What’s Next?

Now that the comment period is closed, the agency will begin the process of carefully reviewing and responding to comments submitted during the rulemaking phase. Don’t be surprised if you instead see the agency focus on the Water. Rest. Shade. prevention program enforced through the General Duty Clause. Remember that state-level rules (e.g., in California, Nevada, and Maryland) will continue to apply.

Conclusion

If you have any questions, contact the authors of this insight, any member of our Workplace Safety and Catastrophe Management Practice Group, or your Fisher Phillips attorney for guidance. Make sure you are subscribed to Fisher Phillips’ Insight System to get the most up-to-date information on workplace safety issues.