From COVID-19 to Heat Illness Prevention: An OSHA Update from NIA Legal Counsel
First, I would like to bring readers up to date on recent changes within OSHA. In mid-March, OSHA declared COVID-19 a National Emphasis Program (NEP). This action will focus increased attention on employers and their COVID-19 Pandemic Protection Programs. Not only will this increase the importance of having a Pandemic Protection Program, but it also draws attention to the actions that may be taken by employers in retaliation to employees who file complaints against them because of what they perceive is a lack of attention by the employer to protection employees from COVID-19. As an employer, you are likely thinking, “I would never retaliate against an employee simply because I determined that they directed OSHA to me by making such a complaint.” But you must remember that retaliation can take many forms. It is more than termination or demotion. It can be any action you take against an employee that the employee perceives is connected to a complaint they made to OSHA. The NEP also gives OSHA probable cause to visit your worksite and at least demand to see your COVID-19 Pandemic Protection Program. Remember that the COVID-19 NEP covers all industries, so OSHA may use it to gain entry to your construction site, shop, warehouse, or office area. If you are confronted with such a visit under the NEP that you do not feel is justified, be sure to contact your counsel before giving OSHA access to your work area. Remember, while such an inspection begins under the NEP, it can be expanded if the compliance officer conducting the inspection sees anything else he or she believes is an OSHA violation or an unsafe condition.
Around the same time OSHA declared COVID-19 an NEP, President Biden appointed Doug Parker to head OSHA. Mr. Parker was, at the time of his appointment, the head of California’s Division of Safety and Health, known as Cal/OSHA. I have read several short commentaries on his appointment, and a few have been titled, “There Is a New Sheriff in Town.” I think some of these sentiments have arisen because of Cal/OSHA’s safety enforcement reputation. Cal/OSHA also has a very broad standard on heat illness prevention and an Emergency Temporary Standard (ETS) on COVID-19. I believe there is a belief that with Mr. Parker becoming OSHA Administrator, we are going to see new standard developments (especially for COVID-19 and heat illness prevention), as well as an increase in enforcement inspections.
Interestingly, shortly after the announcement of Mr. Parker’s appointment, which at press time was still awaiting U.S. Senate confirmation, an ETS was drafted that has already been sent to the Office of Management and Budget for approval. An ETS does not proceed through the same rule-making process as a non-emergency standard. There are more stringent criteria for such a standard, and I question whether COVID-19 can meet the test. An ETS takes effect immediately until it is superseded by a permanent standard. To promulgate an ETS, OSHA must determine that workers are in grave danger due to exposure to toxic substances or agents determined to be toxic or physically harmful. The concept is that an ETS is needed to adequately protect the workers. I believe an ETS on COVID-19 would have met these requirements a year ago, but now, with effective vaccines available to just about everyone, I am not sure that an ETS can be justified. Still, after having not done much of anything definite for more than a year, OSHA likely will move forward on the ETS. Usually, the ETS is used as a model for a permanent standard, which should be adopted within 6 months of the effective date of the ETS. An ETS is subject to challenge in an appropriate Federal Court of Appeals.
On the topic of vaccines, OSHA recently has been addressing recordkeeping requirements for any employees who receive adverse side effects from receiving a COVID-19 vaccine. I think the simplest way to look at recordability is to distinguish between a vaccination mandated by the employer and one that was only encouraged by the employer. Clearly, if you require your employees to be vaccinated, you will have to record any side effects that qualify for inclusion on your OSHA 300 log under the OSHA recordkeeping requirements found in 29 CFR 1904. The same is not true if you only encourage employees to get the vaccine, as long as employees who chose not to get it suffer no adverse consequences because of their refusal to be vaccinated. I believe this will be true even if you take steps to “make it easy” for employees to get the vaccine.
With everything going on with regard to COVID-19, we may lose sight of the fact that there are many other obligations employers have to protect the safety and health of their employees. Do not forget you are always responsible for the safety and health of your employees while they are working for you. As we head into summer and warmer weather, you need to dust off your Heat Illness Prevention Program and retrain your supervisors and your crews on what they need to do to protect themselves from the dangers of working in a high heat index environment, while also not ignoring your responsibility for all applicable safety compliance, such as fall protection and personal protective equipment. When reviewing the Heat Illness Protection Programs of construction industry employers, I have frequently felt that more than half of them do not understand what they need to do to protect their employees from heat illnesses and to comply with what OSHA believes are their obligations under the General Duty Clause.
OSHA has identified five feasible steps to protect employees from heat illness by adopting a National Institute for Occupational Safety and Health (NIOSH) Criteria Document from several years ago. Those five steps are:
- Provide for acclimatization of employees new to working in a high heat index environment (or to your company), or who are returning to such an environment after a period of time away from such an environment.
- Establish a work/rest regimen to provide employees with adequate rest breaks, based on the heat index.
- Establish a hydration schedule for employees and encourage them to adequately hydrate on the established schedule, again based on the heat index.
- Establish cooling-off areas in close proximity to the worksite and make them available to employees during rest breaks or whenever an employee needs to take advantage of them because of the effects of the high heat index.
- Train employees on the illnesses that can occur when working in a high heat index environment, the symptoms of those illnesses, how to identify the symptoms in themselves and others, and the first aid steps to take whenever they are aware that they or another employee is exhibiting those symptoms.
Remember, protecting your employees is your responsibility, so you need to ensure that your site supervisors are aware that they are responsible to ensure that compliance with the five steps is their responsibility. I suggest that you require your supervisors to download the OSHA-NIOSH Heat Safety Tool App on their smartphones and use it to assist them in complying with your Heat Illness Prevention Program.