Urgent call for OSHA Heat ETS before summer 2024!
Most federal rulemakings take years to finalize. However, 11 Attorneys General (AGs) argue that OSHA is mandated to shortcut the process when there’s a “grave danger” to workers. Occupational heat exposure is such a threat to workers on farms and construction sites, the AGs contend in a recent OSHA petition. If the agency comes to the same conclusion, OSHA must, by law, issue an “emergency temporary standard” (ETS).
What does the law say?
Section 6(c) of the Occupational Safety and Health Act, or 29 U.S.C. 655(c), states: “(c)(1) The Secretary shall provide, without regard to the requirements of chapter 5 of title 5, for an emergency temporary standard to take immediate effect upon publication in the Federal Register if he determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger ...”
The law puts time limits on an ETS. Section 655(c)(2) requires the ETS to take effect until superseded by a permanent standard that undergoes notice and comment. Under Section 655(c)(3), the issuance of a permanent standard is contemplated by the OSH Act to occur within six months of the ETS’s promulgation. OSHA has considered that to mean that at the six-month mark, the ETS loses its effect.
What does the petition say?
The petition dated February 9, 2024, follows an earlier one sent one year prior, on February 9, 2023. However, the new petition narrows the scope from “outdoor and indoor workers” to just “farmworkers and construction workers.” The AGs now explain that:
- Extreme heat can cause heat-related illnesses, even death;
- Labor statistics for 2020 to 2022 flag heat as a contributing cause of 99 work deaths, but the AGs quote OSHA as saying that that figure is a significant undercount;
- The likelihood of heat-related death is 35 times higher for farmworkers;
- Construction workers make up over one-third of occupational heat-related fatality cases annually; and
- Heat stress impacts a disproportionate number of Hispanic and Black workers, making it a racial justice issue.
Why an ETS?
OSHA kicked off a rulemaking for a permanent heat standard in October 2021 and completed a small business panel last November. A tentative date for publication of a proposed rule is not slated.
While the petitioners applaud OSHA’s efforts, they say a final rule would take years. Meanwhile, farmworkers and construction workers remain vulnerable, the AGs point out. An ETS would provide employers with clear requirements and strengthen OSHA’s enforcement power sooner.
It is true that some states have issued heat protections, including California, Oregon, Washington, Minnesota, and Colorado. Plus, state-plan states (and OSHA) can use the General Duty Clause (GDC) to cite employers. For example, two weeks ago, the North Carolina Department of Labor issued a serious, willful GDC citation with a proposed $156,259 fine to a farming company that allegedly failed to protect workers when the heat index was over 91 degrees Fahrenheit.
Yet, some states have made it clear that they wish to prohibit the formation of local heat standards. OSHA cannot sit on its hands and let states decide on this one when it has a duty under the law to take action on work-related heat, the AGs warn.
Finally, the petition mentions predictions for the summer of 2024 being “hotter than 2023.” Therefore, the AGs urge OSHA to issue an ETS by May 1, 2024, in time for the summer heat.
What should the ETS require?
At or over a heat index of 80 degrees Fahrenheit is the threshold suggested by the petition. Once that threshold is reached, employers must take protective measures, the AGs advise OSHA. Those measures include provisions for water, shaded/cool areas, breaks, acclimatization, monitoring, training, recordkeeping, and heightened practices in high heat.
At the same time, the petitioners explain that heat stress may occur below the 80-degree heat index for certain vulnerable workers. According to the AGs, employers must take steps to protect these workers, without discrimination or retaliation against those who report heat concerns.
Which AGs signed the petition?
The petition was penned by Attorneys General from Arizona, Connecticut, Colorado, the District of Columbia, Illinois, Maine, Maryland, Massachusetts, New Jersey, New York, and Pennsylvania.
Note that the AGs also sent an email to Congress on February 9, 2024, calling for passage of S. 2501/H.R. 4897, bills to set permanent OSHA standards for extreme heat.
Key to remember
While a permanent heat rule may take years to finalize, OSHA could issue an ETS this year if the agency finds that workers face a grave danger to extreme heat. A petition argues heat exposure is such a threat to workers on farms and construction sites.