Advisories October 28, 2021

Legislative & Public Policy Advisory: Take This Opportunity to Comment on OSHA’s Advanced Rulemaking on Heat Injury and Illness Prevention

Executive Summary
Minute Read

Our Legislative & Public Policy Group takes stock of the Occupational Safety and Health Administration’s notice that the agency is initiating a rulemaking to create a heat injury and illness prevention standard and what companies can do to shape it in its early stages.

  • OSHA seeks input about information and data that it should consider in developing a federal heat-illness work safety standard for both indoor and outdoor workplaces
  • The agency highlights agriculture, construction, transportation, and warehousing as particularly vulnerable industries for heat-illness injuries and mortality
  • The comment period ends on December 27

This week, the Occupational Safety and Health Administration (OSHA) published an advance notice of proposed rulemaking (ANPRM), Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings, RIN 1218–AD3. In this pre-rule, OSHA takes the first step to obtain public input as it considers whether to undergo a more formal rulemaking. Citing the impact of climate change, vulnerability of the energy grid, and regional uncharacteristically hot temperatures, OSHA took this action in response to multiple public petitions in 2011, 2018, and 2021 and the urging from members of Congress asking the agency to establish a federal heat-illness standard. 

In this ANPRM, OSHA seeks public input about information that it should consider in developing a federal heat-illness standard, asking for relevant data that the agency should consider if a future rulemaking is initiated and feedback on current measures targeted to prevent heat-related injuries. The agency discusses both indoor and outdoor work environments and specifically highlights jobs in agriculture, construction, transportation and warehousing, administrative and support, and waste management and remediation services as industries that experience the highest rates of heat-related mortality. 

The agency acknowledges existing state-level regulatory and enforcement measures that currently target heat stress, questioning whether those current standards may contain elements that could be applied at the federal level. Additionally, the agency identifies various employer efforts to determine if industry standards and employer actions have been effective in reducing or preventing heat-related illness in the workplace. 

At this time, OSHA has not developed a proposed rule and is not drafting proposed regulations. This pre-rule is only intended to gather data and information to aid the agency in deciding whether to move forward with formal rulemaking. Regardless, taking this step is a clear signal that the agency is intending to undergo a full rulemaking and will likely pursue a federal heat-illness standard. This is the time for employers to engage to help shape how a proposed standard may be drafted to ensure worker safety measures are reasonable and also reflect the realities of workplace demands.

OSHA is accepting comments for 60 days, until December 27, 2021. The team at Alston & Bird continues to engage and monitor this issue and is available to be a resource as needed.

Media Contact
Nicholas Clarke
Communications Director
Phone: 212.210.1222

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