Just a few days after President Biden directed OSHA to promulgate a COVID emergency temporary standard (ETS), he directed OSHA to develop a standard to cover heat illness prevention. It appears that this will follow usual standard development protocols. OSHA requested input from labor and management on such a standard. The deadline to
submit comments was extended to January 26, 2022. OSHA may also hold public hearings, or it may just take the information received and develop a draft standard. My feeling is that OSHA will use the National Institute for Occupational Safety and Health (NIOSH) Criteria
Document (which is about 10 years old) as the starting point to develop the standard. We have to remember that Doug Parker, recently confirmed as the head of OSHA, comes to the job from his former position as head of Cal OSHA, which has a very broad and very strict heat illness prevention standard. While OSHA is notorious for the length of time it takes to promulgate a new standard, I believe the heat illness prevention standard will be on a fast track.

While OSHA goes about the rule-making process, remember that it has been mostly successful in enforcing heat illness prevention under the General Duty Clause, Section 5(a)(1) of the OSH Act, which requires all employers to provide their employees with a workplace free of recognized hazards causing or likely to cause death or serious physical harm. Heat illness meets that criteria. In a decision in 2012, Judge Patrick Augustine of the Occupational Safety and Health Review Commission listed five parts of the criteria document that he felt were feasible steps for employers to take to prevent heat illness. I am aware that this article is coming out as many of you are experiencing a part of the year with cooler and colder temperatures, but those in the South may be confronted with heat illness issues year-round.

After reviewing applications for the NIA Safety Excellence Awards, it is clear that many companies should take additional steps to prevent heat illness or to meet the feasible steps discussed by Judge Augustine. The five steps begin with acclimatization and proceed through training. Remember that your heat illness prevention program is based on the heat index, not on temperature alone. I strongly suggest that you have your site supervisors download the OSHA-NIOSH Heat Safety Tool app on their smart phones (https://www.osha.gov/heat/heat-app). This will provide them with the heat index on their job site, as well as reminders of actions they should take to prevent heat illness with that heat index.

Five Steps for Heat Illness Prevention

1. Step One: Acclimatization. Identify employees who are reporting to the high heat index environment for the first time or are returning to the high heat index environment after having been away from it for 1 or 2 weeks. You need to set a schedule for the gradual adjustment of those employees to the heat index on the job site over a period of 1 to 2 weeks. With this step, as well as the others, you might want to consult with your company doctor for guidance on the best approach for your employees.
2. Step Two: Establish a Work/Rest Regimen. This will vary depending on the heat index. For a low heart index, you might start with shorter rest periods, with longer work periods between them. As the heat index increases, you will need to increase the length and frequency of rest periods. Again, guidance can be obtained from the OSHA-NIOSH Heat Safety Tool and/or from your company doctor.
3. Step Three: Hydration. Make sure you have adequate cool water on the job site. There should be sufficient water to provide up to a quart of water for each employee, each hour. You need to establish a hydration schedule at the start of the day and be prepared to modify it as the heat index increases. A rule of thumb is a cup of water every 15 to 20 minutes in a moderate heat index. Again, consult the OSHA-NIOSH Heat Safety Tool and/or your company doctor for advice and ideas.
4. Step Four: Cooling-off Areas. Establish cooling-off areas in close proximity to the job site. These should be available for use by employees during rest breaks, especially as the heat index climbs during the day. They should also be available to employees anytime they begin to feel the symptoms of any heat illness. An employee who needs to use a cooling-off area should never be permitted to find their own way to the area. Ideally, the cooling-off area should have an ambient temperature of 75°F.
5. Step Five: Training. Train your employees on the different types of heat illnesses, the symptoms of each, and how to recognize those symptoms in themselves and others. They should also be trained on the first-aid steps to take whenever they see the symptoms in themselves or others. Training also should include such information as staying away from caffeinated beverages and energy drinks. You should also warn employees that anyone with underlying medical issues such as heart disease, diabetes, high blood pressure, and/or a history of prior episodes of heat illness is more susceptible to heat illness than other employees. Another point you can discuss with your employees is appropriate clothing for a high heat index environment. As you can see, training employees on this topic cannot be accomplished in a 5- to 10-minute toolbox talk.

You need to document all training as well as the steps taken each day to protect your employees in a high heat index environment. Finally, your program has to be supervisor driven. You must ensure that supervisors know that this is not something they only tell their employees once and then leave up to the employees to comply or not. Site supervisors must understand that they are 100% responsible for ensuring that employees working for them fully comply with each part of the steps listed. Start now with developing and implementing your heat illness prevention program. When OSHA eventually does finalize a heat illness prevention standard, you should see specific steps you will need to take to be in compliance. Until then, you need to follow the above steps to meet the requirements of the General Duty Clause.

OSHA Issues COVID-19 Emergency Temporary Standard (ETS) for Private Employers

On November 5, 2021, OSHA issued an ETS mandating vaccination and/or testing of all individuals employed by employers with 100 or more employees, with enforcement to start in 2022. Many states, businesses, industry groups, and religious organizations filed challenges in several Federal Circuit Courts of Appeals to block the new ETS. In addition, several labor unions have sued, alleging that the ETS does not go far enough to protect workers from COVID–19. Due to this OSHA has extended the comment period for the ETS to January 19, 2022. For more details on submitting comments, visit www.osha.gov/news/newsreleases/national/11302021.

In response to one of those legal challenges, the Fifth Circuit Court of Appeals issued a temporary stay of the emergency temporary standard on November 6, 2021. The Court issued the stay pending briefing and an expedited judicial review. The court’s review may
lift or continue the stay, pending the litigation. That litigation could completely strike down the ETS.

Note: This is a dynamic situation and NIA will continue to keep you advised as additional information becomes available. The latest changes will be posted at www.insulation.org/membership/covid19 as they become available.