Small Business Advocacy Review Panel publishes report on OSHA's proposed heat rule

On November 3, 2023, the Small Business Advocacy Review Panel, established in accordance with the Small Business Regulatory Enforcement Act of 1996 (SBREFA), published its report on the Occupational Safety and Health Administration's (OSHA) potential standard for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings. The panel included representatives from OSHA, the Office of Information and Regulatory Affairs (OIRA), and the Office of Advocacy of the Small Business Administration (SBA). 

On August 25, 2023, the Panel was officially convened. From September 7-19, 2023, the Panel members, along with the Small Entity Representatives (SERs), participated in six video conferences providing the opportunity for an open discussion regarding the potential standard for prevention of heat injuries and illnesses. In addition to the video conferences, the SERs provided the Panel with written comments.

The report includes the Panel's findings and recommendations, and includes appendices with the names of all SERs and copies of their written comments. SBREFA requires that this Panel Report and its attachments become part of the rulemaking record. OSHA will submit the final report to its Heat Injury and Illness Prevention rulemaking docket at Regulations.gov and post the report on its Heat Injury and Illness SBREFA webpage at Heat Injury and Illness SBREFA | Occupational Safety and Health Administration (osha.gov). As a reminder, OSHA’s Heat Injury and Illness Prevention rulemaking docket (including the final SBREFA panel report) is open for general public comment at Regulations.gov until December 23, 2023.

Executive Summary

Below is an excerpt of the Executive Summary as published within the Panel Report. This provides an excellent summary of the comments submitted by the 82 SERs participating in the review. The following represents the findings and recommendations of the Panel contained within the report:

"The Panel is issuing several findings and recommendations, the details of which can be found in the main body of that report. In summary, the Panel finds and recommends:

• Flexibility and Scalability. 
  SERs agreed and the Panel recommends that an OSHA standard should beflexible where practical with a programmatic approach that allows employers to tailor their program totheir particular workplace.
• Heat Triggers. 
  SERs felt that the heat triggers that OSHA suggested were too low and were confusing. The Panel recommends that OSHA reconsider and simplify the presentation of the heat triggers and provide additional data supporting the levels selected.
• Supporting Data. 
  SERs felt that the numbers of illnesses, injuries, and fatalities reported in the BLS data are low relative to the total worker population, suggesting that a Federal heat regulation is unnecessary. The Panel recommends that OSHA explore whether and how the injury, illness, and fatality data support the promulgation of a heat standard.
• Recordkeeping.
  SERs felt that some recordkeeping requirements that OSHA had suggested were unnecessary, burdensome, or infeasible. The Panel recommends that OSHA reconsider or simplify recordkeeping of temperature monitoring and not require documentation of rest breaks or first-aid-only heat-related illnesses or injuries unless necessary or appropriate.
• Temperature Measurement.
  Many SERs said they currently monitor temperature using a variety ofmethods, but SERs with indoor settings and mobile workforces thought monitoring might be difficult. The Panel recommends that OSHA allow flexibility in monitoring methods and clarify requirements for those with indoor settings and mobile workforces.
• Rest Breaks.
• The majority of the SERs said that they allowed their employees to take rest breaks when they need to, but many objected to OSHA specifying the frequency of rest breaks. The Panel recommends that OSHA consider allowing employers some flexibility in the frequency of rest breaks and clarify what activities employees can engage in during rest breaks.
• Water. 
  SERs universally reported supplying drinking water to their employees. Some SERs found the term “suitably cool” to be vague. The Panel recommends that OSHA consider eliminating or better defining that term.
• Acclimatization.
  Many SERs objected to OSHA’s option for gradual acclimatization to heat, requiring employees to gradually ramp up their exposure to heat over the course of a few days. Many SERs reported having some form of enhanced supervision or “buddy system” for workers who were new to the hot working conditions. The Panel recommends that OSHA provide options for acclimatization to allow employers flexibility in determining the best method for acclimatizing their workers.
• Solo and Mobile Workers. 
  SERs with employees who work alone or travel between jobsites during a shift were concerned about implementing some provisions like supervision, temperature monitoring, and rest breaks. The Panel recommends that OSHA offer flexibility for these employers and clarify the employer’s responsibilities for employees in these circumstances.
• Training. 
  SERs were largely in agreement that training is crucial to protecting employees from heat hazards. The Panel recommends that OSHA include a robust training provision in a heat standard. The Panel also recommends that OSHA continue to provide support for employer training efforts by providing training materials, sample curriculum, videos, and/or other methods.
• Heat Injury and Illness Prevention Programs.
  Many SERs reported having heat programs in some form, and many were supportive of OSHA requiring a written program in a heat standard. Some SERs suggested that very small employers should be exempt from having a program in writing. Most SERs agreed that a program should be reviewed and updated annually. The Panel recommends that OSHA include a requirement for a written heat injury and illness prevention program that allows employers the flexibility to tailor their plans to their specific industry, location, and activities, that updates to the program be required annually, and that any situations where additional updates are required are clearly delineated. The Panel also recommends that OSHA consider exempting very small employers from having a program in writing.
  Cost/Time Estimates. SERs disagreed with some specific time and cost estimates. The Panel recommendsthat OSHA review time and cost estimates and revise where appropriate.
• Engineering and Administrative Controls. 
  SERs were concerned that some engineering controls (like air conditioning, fans, and misting fans) and administrative controls (like adjusting start times and monitoring employees) would be difficult or infeasible to implement. The Panel recommends that OSHA offer flexibility to allow employers to implement controls that are feasible and appropriate for their workplace and activities."