OSHA has denied a request by several groups to enact an Emergency Temporary Standard (ETS) setting a heat threshold level for workers. But OSHA is addressing the issue, including enforcement through the General Duty Clause (GDC).
Public Citizen and other groups and individuals asked OSHA to enact a heat stress ETS.
Under the Occupational Safety and Health Act, OSHA can issue an ETS when it finds employees are exposed to a grave danger from exposures and that the ETS would be necessary to protect workers. The ETS would remain in effect for up to six months at which time OSHA would be required to issue a permanent standard.
A “grave danger” finding is necessary for OSHA to issue an ETS. Grave danger is defined as evidence of a serious health impairment involving incurable, permanent or fatal consequences. Grave danger also involves risk that is higher than the “significant risk” that is required to support a permanent standard.
OSHA says the mortality rate for heat-related deaths does not exceed those of other hazards that are classified as significant, so an ETS can’t be issued.
Also standing in OSHA’s way: court challenges.
Several times in OSHA’s 40-year history, courts have overturned the agency’s attempts to use an ETS.
No lack of enforcement
Despite not enacting a heat stress ETS, OSHA still has several tools at its disposal to issue citations to companies if workers suffer heat stress:
- The GDC: OSHA can cite an employer for violating the GDC if the company has exposed employees to serious, recognized heat hazards. In the past 25 years, OSHA has issued 43 GDC violations for heat exposures in the following industries: landscaping, roofing, farming, construction/paving, tree cutting and garbage collection.
- The Recordkeeping regulation: If a worker receives intravenous fluids, the case must be recorded on the OSHA 300 Log.
- The Sanitation standards require employers to provide potable water that is readily accessible to workers.
- The Medical Services and First Aid standards require people be adequately trained to administer first aid if medical facilities aren’t close by.
- The Safety Training and Education standard requires employers in the construction industry to train employees in the recognition, avoidance and prevention of unsafe conditions in the workplace, and
- The Personal Protective Equipment standard requires every employer in general industry to conduct a hazard assessment to determine appropriate PPE to be used to protect employees from identified hazards. Similar standards also exist for the shipyard, maritime and construction industries.
You probably noticed the headline of this story says OSHA doesn’t plan on a heat stress standard “for now.”
Why might federal OSHA still consider a heat stress standard eventually? First of all, some states, including California, have their own regulations regarding heat stress.
The second reason is this sentence from OSHA’s letter, stating its rejection of an ETS for heat stress: “Although OSHA is not planning on promulgating a standard to address the risks associated with exposure to extreme heat in outdoor workers anytime soon, the Agency has recently taken a number of actions to protect workers from this hazard.”
As the above sentence notes, the agency hasn’t exactly closed the door on the idea.
Rejecting the request for an ETS was just practicality on the part of OSHA. Other attempts at creating an ETS for other occupational hazards have failed in court. Having to defend the ETS in court would just take the agency’s time and scarce resources.
And a recent report shows it takes, on average, eight years to enact a new OSHA regulation. Even if OSHA started the process of creating a heat stress standard tomorrow, it wouldn’t take effect for years.
Should federal OSHA enact a heat stress standard? Or do you think the enforcement tools it already has at its disposal are sufficient? Let us know what you think in the comments below.