The attorneys general of several states wants OSHA to move quickly to adopt a federal heat safety standard, citing the “grave danger” of extreme heat that workers are increasingly exposed to.
Attorneys general of California, Illinois, Maryland, Massachusetts, New Jersey, New York and Pennsylvania issued a petition Feb. 9 to federal OSHA asking the agency to move quickly to adopt an emergency heat safety standard and issue an emergency temporary standard (ETS) in the interim.
OSHA is required to create an ETS if it finds that:
- workers are exposed to a grave danger in the workplace, and
- an emergency standard is necessary to protect workers from such danger.
The attorneys general of the seven states who signed the petition said “both factors are undeniably met” when it comes to U.S. workers who have to perform their jobs in extreme heat.
In the opening paragraphs of their 44-page petition, the attorneys general outline three reasons OSHA should act now to promulgate a federal heat safety standard:
1. Extreme heat poses grave danger to workers
Tens of millions of outdoor and indoor workers across the U.S. are exposed to what the attorneys general call the grave danger of extreme workplace heat.
“Exposure to extreme heat can cause a range of acute and chronic heat-related illnesses, and extreme heat is responsible for dozens of workplace deaths each year, a number that is likely significantly undercounted,” the petition states.
The petition points out that while all outdoor and many indoor workers are susceptible to occupational heat illness, workers in the agricultural, construction, postal and delivery services, warehousing, and food industries are particularly vulnerable.
This is due to “the combined effects of their work environment, the physical nature of their work, and prevailing socioeconomic factors.”
2. ETS needed now to protect workers from immediate hazard
Federal OSHA has a duty to issue an ETS on extreme heat in 2023, according to the attorneys general.
The petition said, “In 27 states and territories, OSHA is the only entity authorized to issue workplace health and safety standards that cover both public and private sector workers.” Further, OSHA has exclusive authority to regulate private sector health and safety in many states.
California, Oregon, and Washington, which all have state OSHA plans, have already identified extreme heat as a grave danger and have promulgated emergency standards, and ultimately permanent standards, according to the attorneys general.
They mention that while they strongly support OSHA’s efforts toward rulemaking for a permanent standard, they also know that process could take years to complete.
Instead of waiting, the petition urges OSHA to issue an ETS that would go into effect “when the heat index reaches 80°F – a temperature associated with increased rates of serious heat-related illnesses – and requires employers to take targeted steps to prevent harm to their workers, such as providing ample water, rest breaks, and access to cool or shaded areas.”
The petition states that this ETS should be promulgated by May 1, 2023, to be in place by the beginning of summer.
OSHA introduced its first ever National Emphasis Program on extreme heat in April 2022.
3. Enforcement under GDC is insufficient
The petition states, “As OSHA has acknowledged, enforcement actions under the General Duty Clause (GDC) are almost always unsuccessful because without a regulatory standard for heat, it is difficult
for the Agency to prove in an enforcement proceeding that working in extreme heat is hazardous.”
This refers to an Occupational Safety and Health Review Commission (OSHRC) case that saw an administrative law judge rule that “OSHA’s use of the National Weather Service’s heat index chart in heat stress cases lacks a scientific basis.”
The July 2020 ruling had a big impact on OSHA’s ability to successfully use the GDC to enforce violations involving extreme heat.
In past heat illness cases, OSHA would use the GDP and the heat index chart together in its attempt to prove that a violation existed, but after the 2020 decision it has become much more difficult.