AGC seeks clarity from agency, as its efforts appear to go well beyond the basic concepts of providing water, rest and shade, the core elements of OSHA’s heat prevention initiatives since 2011.

On April 8, OSHA issued the first national emphasis program (NEP) addressing outdoor and indoor heat-related hazards. The NEP incorporates and expands on the September 1, 2021, heat initiative memorandum to further focus on heat-related hazards and provides procedures for programmed and follow-up inspections in targeted workplaces. Under the emphasis program, each Region is expected to have a fiscal year goal of increasing their heat inspections by 100% above the baseline of the average of fiscal years 2017 through 2021. OSHA Area Offices are required to assess the potential for heat-related illnesses, injuries, and deaths where heat-related hazards may exist on heat priority days when the heat index is expected to be 80°F or higher.

Any proposed citation for a heat-related health hazard for both indoor and outdoor work activities shall be issued under the General Duty Clause (GDC), section 5(a)(1) of the OSH Act, when all elements of a violation have been established. When all elements of a GDC violation have not been met, a Hazard Alert Letter (HAL) may be sent to the employer.

The NEP appears to suggest that employers are to go well above and beyond the basic concepts of water, rest, and shade, which have been the core elements of the OSHA Heat Illness Prevention Campaign since 2011. During heat-related inspections, Compliance Safety and Health Officers (CSHOs) have been directed to determine if the employer has a heat illness and injury program addressing heat exposure, and consider:

• Is there a written program?
• How did the employer monitor ambient temperature(s) and levels of work exertion at the worksite?
• Was there unlimited cool water that was easily accessible to the employees?
• Did the employer require additional breaks for hydration?
• Were there scheduled rest breaks?
• Was there access to a shaded area?
• Did the employer provide time for acclimatization of new and returning workers?
• Was a “buddy” system in place on hot days?
• Were administrative controls used (earlier start times, and employee/job rotation) to limit heat exposures?

What remains unclear is which, or how many, items from the above list must be implemented to avoid any heat-related citations and penalties under the GDC. AGC will seek clarification from OSHA regarding an employer’s obligations under the NEP to better assist members with effectively protecting workers from hazards related to heat, while also avoiding citations during any enforcement proceedings.

For more information, please contact Kevin Cannon at [email protected]  or Nazia Shah at [email protected].