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Proposed OSHA Heat Injury and Illness Prevention Rule Could Create A New Species of Labor Litigation
July 12, 2024
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On July 2, 2024, OSHA released a new proposed rule that would create substantial compliance and recordkeeping commitments on all employers conducting outdoor and indoor work in settings where temperatures regularly exceed 80°F. This could notably affect construction, agriculture, and manufacturing, but includes in its scope all general labor.
Under the proposed rule, employers are required to develop and implement a work site heat injury and illness prevention plan (HIPP) with site-specific information. The employer must also designate one or more “heat safety coordinators” to implement and monitor the HIPP.
Employers must also identify heat hazards, by tracking local heat index forecasts provided by the National Weather Service or by monitoring the actual temperature or heat index at the individual work site.
The proposed rule, if approved, would require employers to provide workers with water and shaded or air-conditioned areas to take breaks when temperature at the worksite reach 80 degrees Fahrenheit. At or above 90 degrees (so-called “high heat trigger” conditions), employees must be provided a 15-minute paid rest break at least every two hours in the break area. When determining a high heat trigger is met or exceeded, employees must be notified of the importance of drinking water, employee’s right to take needed rest breaks, and how to seek help for a heat emergency.
This proposed rule will enter the public comment phase upon publication in the Federal Register, and it is anticipated that there will be major industry pushback against the new regulations. However, it should be noted that the Biden administration has come out strongly in favor of this proposed rule, based on the rising rate of heat related illnesses and deaths among laborers in the United States. It can be expected that there will be significant pressure for the administration to push for the proposed rule as written.
Should this rule come into effect, employers in high-heat sectors such as construction, agriculture, and manufacturing may, in addition to the administrative cost of compliance, face a new species of litigation in employees bringing suit for injuries premised on failure to provide employees with breaks, failure to provide water, or failure to provide sufficient monitoring of high heat conditions.
