As summer weather is upon us, Federal OSHA is in the midst of an effort to promulgate a heat illness regulation while simultaneously starting a national emphasis program around heat illness.

This article provides an overview of the new efforts and how they will affect employers.

Federal OSHA already had a pre-existing heat illness prevention campaign in place. The new regulation effort started in October, 2021 with an advanced notice of proposed rulemaking. The directive creating the national emphasis program was published on April 8, 2022.

These three elements tie together by allowing OSHA to immediately start enforcement of the National Emphasis Program (NEP) under the general duty clause, while skipping the required outreach period by stating that the ongoing campaign serves as the required 90-day outreach effort. The third leg of the stool will be the regulation, assuming it gets through the promulgation process.

The new regulation would allow Federal OSHA to enforce specific regulation elements rather than relying on the general duty clause as it will have to do initially. In what might be considered a foreshadowing comment, the NEP encourages duty officers to consider whether the heat illness prevention program at an employer is in writing or not. A written program is not required by a specific federal regulation at this time.

Of the three elements the most immediate challenge facing employers is the emphasis program itself. The focus of the program will be industries that OSHA believes are most likely to experience heat-related illness among workers. In states that already have their own regulations or emergency regulations such as California, Washington, Minnesota, and Oregon, the state regulation does not always address both indoor and outdoor heat. This NEP addresses both forms of heat exposure, which may cause these states to expand how they are inspecting workplaces. The proposed regulation does outline the plans in place in these states and what they do and do not cover. See Table II, D.1.

Federal OSHA is not requiring state plan states to adopt the NEP, but it is strongly encouraging them to do so. Federal OSHA is, however requiring state plan states to respond with their intent to adopt or not adopt the NEP within 60 days.

While any employer could receive a visit if OSHA receives a complaint, a heat-related illness occurs a heat-related observation is brought to OSHA, or they are being visited for other OSHA enforcement processes, the NEP does outline employers by North American Industry Classification System (NAICS) codes that will be more likely to have heat-related visits than others.

The NEP directive outlines the methodology by which employers will be added to the visit list and includes variables such as employers who may already be scheduled for a follow-up visit or who have had past issues with heat illness, as well as a grouping of NAICS codes from which a visit list will be randomly generated. This list below is outlined by NAICS codes from the 2017 code version.

The tables below outline general industry (table 1), construction (table 2), and potential regional group additions (table 3) which will be entered into the randomization process. It is important to remember that as inspectors are in the field and feel they observe heat illness concerns during visits focused on other issues, those employers may be added to the inspection listing regardless of NAICS code.

It is also important to remember that this NEP covers both indoor and outdoor exposures.

Programmed visits based on the above NAICS codes will occur on days where the National Weather Service has announced a warning or advisory for heat. Here are the NEP’s definitions for those terms:

While it is not clear whether all programmed visits will occur during these warning and advisory days, we do know that some will occur then. The duty officer will observe your plan in action as well as interview your employees about any heat-related symptoms and whether the plan is put into action or not.

“Furthermore, programmed inspections shall occur on any day that the NWS has announced a heat warning or advisory for the local area.” –the NEP

Additionally, there are directives in the NEP document for visits based on observations in the field, referrals from the field, complaints, follow-ups to serious injury reporting, and 300 log entries associated with heat.

At least some of these visit types will have to do with what is observed at your location during hot days or complaints that occur during days that fall within the heat parameters set out in the NEP appendix G.

The long and short of it is that your plan must be in place and in use during the hot weather and that you should expect the likelihood of an OSHA visit to increase during hot days and directly following a hot weather episode.

The NEP outlines activities expected of their duty officers specifically related to heat, but you should also expect those duty officers to ask questions around other topics or interact with you using the plain sight doctrine. If they see a hazard, they can address that hazard regardless of the topic involved.

As it relates to heat, the following is incorporated into the NEP in section XII(D)(2), as direction to those duty officers conducting the site visit.

6.  Identify activities relevant to heat-related hazards. These can include, but are not limited to:

With three separate federal efforts occurring, several state initiatives, a current region VI emphasis program in place for AR, LA, NM, OK, TX, and changes occurring at a rapid pace based on the NEP, this could be a confusing year for employers.

As the weather warms. you may wish to have your safety department work through your heat illness prevention program after reading the NEP and monitor the current regulation efforts to ensure you are in compliance. Most employers are taking care to make sure their employees are not exposed to injurious heat levels. Making sure you are on top of the latest information and that you are getting credit for what you are doing can be helpful if you are faced with a compliance visit.

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