Proposed OSHA Heat Regulations

August 1, 2024

Hot Off the Press...

In the U.S., the Occupational Safety and Health Administration (OSHA) has released their newly proposed regulation to protect workers in all industries from heat injuries and illness . I have been getting many questions on what this means and how it may impact the construction industry. Since the rule is nearing the public comment phase I thought I would use this issue of Thoughts from the Field to analyze the proposed rule and discuss my thoughts on the potential impacts to the construction industry.

However, before I jump into the proposed regulation, I think it’s important to acknowledge the actual danger that many people in the construction industry are facing due to the heat this summer. No one should be waiting to see what a new rule tells them to do. The hazard already exists, and deliberate proactive steps should already be in place to protect people. In fact, the proposed regulation contains nothing new or revolutionary. There isn’t anything in the new rule that hasn’t already been said. In fact, the rule is mostly based on a NIOSH document titled Criteria for a Recommended Standard: Occupational Exposure to Heat and Hot Environments that was originally published in 1986, and then revised and published in the Federal Register in 2013. This means many of the steps that may be mandated in the new rule have been around for decades, but since NIOSH is a division of the Centers for Disease Control and Prevention (CDC) and does not regulate labor in the construction industry, these have been recommendations and not rules.

Even with the lack of a specific heat safety regulation, the law in the U.S. already states that employers are required to provide a safe and healthy workplace that is free of recognized hazards (commonly referred to as the General Duty Clause). Heat is certainly a recognized hazard, so why is a new rule needed?

In my opinion, it really comes down to two issues:

1.????? Enforcement – it is very difficult for OSHA to proactively enforce rules under the General Duty Clause until something goes wrong. In other words, they can issue a citation when someone dies from heat stress at a work site – obviously the site was not free of recognized hazards. But without prescriptive rules it is difficult for them to issue a citation when it just seems like the contractor isn’t doing anything regarding the heat. With a set of prescriptive rules, OSHA is able to inspect and cite for each rule that isn’t followed.

2.????? It's not just construction – OSHA regulates all industries in the U.S. (except mining) and has written a single rule that is intended to cover General Industry, Construction, Agriculture, and Ship Building. While we in construction may feel like we are already taking the necessary steps, for example providing breaks when needed to keep from getting overheated, other industries such as agriculture may be experiencing a real problem with workers not being given enough breaks. Since the hazard remains the same across all industries, there is one proposed rule. On one hand, this creates uniformity across all industries; on the other hand, it may be imposing requirements on construction that we may feel we don't really need.

Overall Analysis

The new rule is 18 pages long . It follows a very prescriptive format that is similar in fashion to the other modern rules released by OSHA such as Confined Spaces and Silica. For the most part I find it clearly written, easy to understand, and unambiguous. These are good qualities to have in a new rule that we are going to have to follow. With one exception, I also don’t see any outrageous demands or crazy new ideas. In general, the proposed rule will require employers to have a written Heat Injury Prevention Plan that contains very specific trigger points for enacting very specific steps and procedures to keep workers safe.

It requires monitoring but allows for the use of either WBGT (Wet Bulb Globe Temperature) measurements or the heat index calculated using just ambient temperature and humidity. While I think a simple instrument that measures WBGT such as the Kestral Heat Stress Meter should be deployed on job sites, compliance can also be achieved by simply using the free NIOSH Heat Stress App downloaded to your phone that reports the calculated heat index based on your GPS location. Again, I think we all should already be doing this.

I am disappointed that the requirements have gone from having 4 heat hazard categories down to 2. What I mean by this is that the previously developed NIOSH document contained multiple heat hazard categories, or 4 different trigger points, each with their own increasing level of requirements. When the heat index reached the highest level (called "Extreme" and equivalent to a heat index over 115 F), the recommendation was to stop any work that was not deemed critical. That level is not included in the newly proposed regulation, and I think that's a mistake.

You can check out a demonstration of using the older version of the NIOSH Heat App using the 4 heat hazard categories in this video below. If you have access to LinkedIn Learning, you can continue and watch the next videos in the course that describe the recommendations for working under each of the different heat hazard categories.

As now written, these multiple heat hazard categories are not specifically recognized, and the rule defers to a simplified system of having just two trigger points. The initial heat trigger occurs when the heat index reaches 80 degrees, and the high heat trigger occurs with a heat index of 90 degrees. The chart below summarizes the actions that are required under the proposed regulations. This incorporates the basic tenants of water, rest, and shade; and it requires training. Again, all things we should already be addressing. It does go into greater detail on a couple of these items, and that’s worth taking a closer look at.

Acclimatization and Monitoring People

The regulations spell out a mandatory acclimatization plan that we probably need in the construction industry because I rarely see even the best of companies following any strict written acclimatization policy. Getting the body adjusted and accustomed to working in the heat is real. It works. Putting everyone on the same page as to what needs to be done to acclimatize is probably a good step.

At or above the "high heat trigger", the rule would require people to be monitored for signs and symptoms of heat illness using one of three methods:

• A buddy system in which coworkers observe each other
• Observation by a supervisor or heat safety coordinator who observes no more than 20 people
• For employees who are alone at a work site, the employer must maintain a means of effective, two-way communication with those employees (e.g., by electronic means (such as a handheld transceiver, phone, or radio)) and make contact with the employees at least every two hours

The previous NIOSH recommendation of requiring physiological monitoring by a qualified individual when working in extremes of 115 degrees or higher are no longer present. I also don't think the new requirements for lone worker monitoring are adequate under high and extreme heat hazards.

Water and Shade

At first glance, there is nothing new here, but I think it deserves some discussion. Yes, water and shade have been key components in battling heat illness for many years. Yes, it seems fairly straightforward. Except that it’s not. I think it’s time to start looking at this in terms of site-specific plans, similar to the way we look at bathroom and break facilities. There is already an OSHA regulation (29 CFR 1926.51 ) that stipulates the number of bathroom facilities that are required depending on the number of workers on a site. That’s been a requirement for so long that we tend to take it for granted that these are going to be supplied by the General Contractor. We don’t see every sub-contractor on a project show up with their own port-a-johns. It is also becoming more common to see GCs construct some sort of designated break area for use by all the trades.

Moving forward, the requirement to provide a cooling location needs to be incorporated into this level of site-specific planning by the General Contractor. For example, I did this with a client for a very large warehouse where many people from several different trades were going to be working on the roof during the summer. We provided and maintained two shaded cooling stations at each end of the building (on the roof) and included that in the site-specific plan. This ensured the trades understood how this was going to be accomplished, and that they didn't need to duplicate the efforts.

Here is another example of steps taken by a General Contractor in my area to help trades combat the heat on their project.

This all needs to be clearly communicated between the GC and the Trades to ensure that all conditions are considered. In my example here, we also had an underground trade that was going to be working with a very small crew on the other side of the site. Knowing what was going to be provided by the GC signaled to them that they would need to make plans for another means of providing a break area that was closer to their work.

I think these are great trends that create better working conditions for our front-line trade workers in the field. I also think it's time to consider expanding these break areas to make them designated cooling stations where all of the companies working on site have collaborated to keep everyone safe. Here is another example of newer ideas for colling stations.

Mandatory Breaks

This is the section that I believe is going to cause the most grief among construction employers that work in high heat areas. It's also one of the most important elements of the rule and goes hand in hand with providing water and break areas. The challenge is that the rule stipulates that when the high heat trigger is reached, we go from "allowing paid rest breaks as needed to prevent overheating" to being required to provide "a minimum 15-minute paid rest break at least every two hours in the break area". The rule goes on to specify the following:

• The break must be taken in the designated break area required to be established by the rule
• The time it takes to walk to and from the break area cannot be included in the 15 minutes
• The time it takes to don and doff any PPE cannot be included in the 15 minutes

I think this is where compliance starts to become challenging. First, this amounts to an hour's worth of breaks for an eight-hour shift, which is bound to get pushback from industry. We are also sure to see pushback regarding the stipulation for 15 minute long breaks every two hours, as opposed to 5-minute breaks every 45 minutes. Is one better than the other? I know that when it's 110 degrees here, I can't do strenuous work for two hours straight without a break.

Just as challenging as the actual "compliance", its proving compliance. Being subject to strict minimum times with detailed requirements about when and where the clock starts and stops generally indicates that we are going to have to be able to document these breaks for every individual on the job.

Breaks are necessary, and mandated breaks also help to alleviate things like:

• problems we have with individuals deciding they can push through because they don't need a break
• supervisors who may push people too hard in the name of getting it done
• honestly loosing track of whether or not someone has rested enough

However, I do think that the mandatory breaks will create challenges for construction companies in the summer that are going to have to be well thought out.

Conclusions

There is much more that could be analyzed and discussed regarding this new rule, and if you want more analysis, I recommend reading the blog post from Jordan Barab (the former Deputy Assistant Secretary of Labor) that goes into more detail on other aspects of the proposed rule. For my purposes here, I chose to stay focused on the parts of the rule that I think have the biggest potential impact on the way we work in construction. As discussed above, I think the mandatory breaks, with mandatory minimum times, are going to cause challenges. Not because we are going to have provide breaks, but because as soon as we have a mandate for something like a minimum of 15 minutes, we probably have to be able to track and report that time for each individual, every single day. Even the companies that are already doing this are probably not tracking it to that level, which will need to be addressed when and if this rule takes effect.

Take Aways

Let’s end the discussion on that point – if the rule takes effect. There are many challenges to this new regulation, as there have been to every other new regulation ever proposed by OSHA. My opinion is that none of them will stand in the way of this rule moving forward. However, what may stand in the way is a new presidential administration coming in January 2025. It is entirely possible that a new administration would put a halt to any new OSHA regulations, effectively benching this new heat rule. So how do we plan for that?

Simple. In my opinion, construction employers should just start moving forward to create and implement at Heat Injury and Illness Prevention Plan. The risks of not doing that are simply too great. In my area of the country, we saw over two months last summer where the low temperature never dropped below 90 degrees F (32 C) and high temps topped 115 F (46 C). This is clearly a recognized hazard. Although many companies acknowledge that, we are still not doing enough to address it. The key to fixing this is a formal plan, instead of just “be careful when it gets really hot”. If you doubt that, take a look at this article that chronicles the tragic loss of an experienced utility worker who’s fatality due to heat leaves behind an 11-year-old young son and 3-year-old daughter.

Take steps to make sure you understand the risk factors, signs and symptoms, and treatment for heat illness. Watch your co-workers in the field and do not leave someone alone that is experiencing symptoms.

Additional Resources for Construction Management Professionals

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