This summer is shaping out to be another scorcher and Washington State employers should know about the Department of Labor & Industries (“LNI”) new emergency requirements for heat and smoke protections for outdoor employees effective June 15 through September 29.

Washington’s emergency requirements are meant to help employees avoid heat exhaustion and heat stroke. Covered employees include any worker who must work outside for more than 15 minutes in any 60-minute period, regardless of industry.

Workplace Heat

The emergency rules for workplace temperatures update WAC 296-62-095 – 09560 and employers are responsible for monitoring work site temperatures throughout the day. When temperatures reach 89° employers must ensure these protocols are in place for workers regardless of their clothing type:

  1. Provide enough “suitably cool” water, recommended at 50-60 degrees, for each employee to drink at least a quart an hour;
  2. Provide sufficient shade (or temperature controlled environments like air-conditioned trailer or misting station) that is large enough for, and close enough, to workers;
  3. Encourage and allow workers to take paid preventative cool-down breaks as needed, including standard rest breaks and meal periods (which do not need to be paid unless required under the state wage law); and
  4. Require a 10-minute, paid cool-down break every two hours.

If outdoor employees are required to wear clothing that may cause overheating at lower temperatures, employers should know that the temperature threshold for these requirements may differ. These requirements apply to employees wearing nonbreathable clothing, such as PPE suits, at 52° and 72° for employees wearing double-layer woven clothes, such as jackets, sweatshirts, or coveralls. Employers must train workers and supervisors on these new emergency requirements.

Wildfire Smoke

The new emergency rule for wildfire smoke is codified at WAC 296-62-085. With the unfortunate and increased reality of wildfires, the resulting smoke is also a potential hazard to employees. Under this rule, employers must monitor the Air Quality Index (AQI) for wildfire smoke and implement safety protocols. When the AQI is at 69 or higher, employers are encouraged to limit their workers exposure to smoke. LNI provides some helpful suggestions for limiting exposure:

  • Reducing, rescheduling, or relocating work;
  • Providing enclosed buildings or vehicles where the air is filtered; and
  • Reducing the work intensity or increasing rest periods.

At this AQI level, employers must also: (1) have a written smoke response plan with various elements; (2) determine smoke levels before and periodically during shifts; (3) train employees on wildfire smoke hazards and inform them of available protective measures; and (4) train supervisors on how to respond to health issues caused by smoke.

When the AQI is at 101 or higher, employers must limit workers’ exposure whenever feasible, alert employees to smoke levels, and provide and encourage use of respirators. Also note that protective respirators are required in extreme AQI levels (500+). At all times during the implementation of this emergency rule, if employees show signs of injury or illness related to smoke, employers must monitor to determine whether medical care is needed. Employers cannot prevent workers from seeking medical treatment.

These emergency rules are meant to supplement the permanent annual heat prevention rules that require ready access to at least one quart of drinking water per worker per hour, an outdoor heat exposure safety program with training, and an appropriate response to workers who are experiencing heat-related illness symptoms.

If you have questions about this blog, please reach out to the Jackson Lewis attorney with whom you often work, the authors of this blog, or any member of our Workplace Safety and Health Team.

Employers can breathe a sigh of relief for now as it appears that Senate Democrats are no longer pursuing a massive increase to OSHA’s penalties for safety violations.  Currently, the maximum fine OSHA can assess against an employer per alleged repeat, willful, or failure-to-abate violations is $145,027.  The penalty amount is subject to automatic annual inflation adjustments.

Last year, the U.S. House of Representatives passed a bill that would have dramatically raised the maximum penalty to $700,000 per alleged violation – over a 380% increase from the current cap.  However, the most recent update to the reconciliation spending bill still being debated by the U.S. Senate did not mention or include any provisions for raising the cap on civil money penalties for citations issued by OSHA.

Labor and safety groups along with many Democrats have long advocated for higher OSHA fines which they argue will deter safety violations and encourage better employer compliance by reducing or eliminating workplace hazards that could lead to serious injury or death.  Despite these good intentions, OSHA regulatory compliance can be extremely complicated and expensive even for large employers and increasing penalties at such a high rate will not necessarily result in better outcomes.  In fact, massive fines would most certainly lead to employers being more likely to contest citations in drawn out litigation.  This would take away time and resources from actual compliance and would not serve the underlying purposes of the OSH Act.

On the funding front for the agency, Democrats on the U.S. Senate Appropriations Committee have proposed a $68 million dollar increase to OSHA’s fiscal budget for 2023.  In total, U.S. Senate Democrats would fund OSHA in 2023 with approximately $679.8 million dollars.  While certainly a significant increase from 2022 funding levels, this is considerably less than the $702 million dollars requested by the White House or the $712 million dollar OSHA budget passed by the U.S. House this year.

According to the committee’s bill report, the additional funding is designed to increase OSHA’s critical enforcement activities to inspect the nation’s workplaces to prevent employee injuries and deaths.  Under this proposal, all line-items for OSHA’s budget would be increased from 2022 levels.  This includes $272 million for enforcement, whistleblower protections at $27.5 million, and standards development at $27.5 million.  It is likely that any budget increase for enforcement would be directed to hiring more Compliance Safety and Health Officers (CSHOs) in order to conduct more workplace investigations related to hazards such as heat stress, workplace violence, and ergonomics.

While employers will need to be prepared for an expected rise in OSHA enforcement activity next year, at least for now it does not appear that it will come along with significantly higher penalties.

If you have questions or need assistance on OSHA compliance, inspections and citations, please reach out to the Jackson Lewis attorney with whom you often work, or any member of our Workplace Safety and Health Team.

As thermometers hit their peak, the White House is touting the Occupational Safety and Health Administration’s (OSHA) heat illness prevention efforts to “protect millions of workers from heat illness and injury.”

To read this article in its entirety, please click here.

Federal OSHA previously announced the creation of the Heat Illness National Emphasis Program (NEP) and signaled its intent to take a more proactive approach to prevent heat related illnesses. Now various states, including Nevada, are moving to adopt their own regulations regarding heat related illnesses. Understanding Nevada’s response to the NEP will help your business keep its employees healthy and beat the heat.

OSHA’s NEP
Through the NEP, OSHA identified 70 industries which have a heightened chance of heat related illnesses. These industries include both construction and non-construction employers as well as outdoor and indoor worksites. On “heat priority days” Federal OSHA intends to conduct field inspections, ask employers about their heat-related hazard prevention programs, and assess the potential for heat-related serious illnesses and injuries for that employer. Federal OSHA defines a heat priority day as a day when the heat index (a measure of how hot it feels when relative humidity is factored in with the actual air temperature) is 80 degrees Fahrenheit or higher.

Federal OSHA will prioritize conducting field inspections for complaints and all employer-reported hospitalizations, relating to heat hazards. Additionally, the local OSHA offices will generate a list of employers that fall within the 70 identified industries and begin random inspections of these businesses on any day that the National Weather Service has announced a heat warning or advisory for the local area

Nevada’s Response to OSHA’s NEP
Like Federal OSHA, Nevada OSHA is in the process of adopting a new regulation governing heat hazards. Until the new regulation is adopted, and in an effort to support Federal OSHA’s NEP, Nevada OSHA announced it will prioritize site inspections for the 70 high-risk industries identified by Federal OSHA, as well as additional industries identified by Nevada OSHA. However, due to Nevada’s desert climate, Nevada defines a heat priority day as any day where the temperature reaches or exceeds 90 degrees Fahrenheit, instead of Federal OSHA’s target of 80 degrees.

How Your Business Can Beat the Heat
Employers are encouraged to be proactive about heat hazards and take common sense actions to safeguard employees. This includes advising employees about heat-related illnesses, developing a heat illness prevention plan, and providing rest breaks, shade, and easily accessible cold drinking water. Indoor employers should ensure there is adequate ventilation, cooling fans, and air conditioning when available.

If you have questions about this blog, please reach out to the Jackson Lewis attorney with whom you often work, the authors of this blog, or any member of our Workplace Safety and Health Practice Group.

With summer arriving and temperatures starting to rise, Oregon employers should familiarize themselves with the new Oregon OSHA Heat Illness Prevention standard (OAR 437-002-0156) that comes into effect on June 15, 2022.

Covered Employers

The new standard applies to workplaces when an employee is performing work activities in any environment (both indoor or outdoor) where the heat index is 80 degrees Fahrenheit (°F) or higher. Additional high heat requirements apply if the heat index reaches 90°F.

Key Requirements for Covered Employers

Covered employers must take the following steps to prevent heat illness in the workplace:

  1. Provide access to shade. Shade may be provided through any natural or artificial means and must (a) be open to the air or have mechanical ventilation for cooling, (b) be located as close as practical to the areas where employees are working, and (c) accommodate at least the number of employees on recovery, rest, or meal periods.
  2. Provide cool or cold drinking water. There must be enough readily available cool (66-77°F) or cold (35-65°F) water for each employee to consume 32 ounces per hour at no cost to the employee. Employees must also be given ample opportunities to consume the water.
  3. Emergency Medical Plan. The employer’s emergency medical plan must address employee exposure to excessive heat, in accordance with existing rules for emergency medical plans.
  4. Acclimatization Plan. Employers must develop and implement a written acclimatization plan that allows employees to gradually adapt to working in the heat. Employers may design their own plan that satisfies certain requirements or adopt the plan set forth in the rules.
  5. Heat Illness Prevention Plan (HIPP). Employers must develop, implement, and maintain a written HIPP that address certain topics, such as employee training on the hazards of heat exposure and heat-related illnesses, how employees will be provided with shade, water, and opportunities for rest, and how the employer will implement heat acclimatization procedures.
  6. Ensure supervisor and employee training. Employers must provide annual heat illness prevention training to all employees. The training must cover specific topics set forth in the rules, such as environmental and personal risk factors, types of heat-related illness, and employer responsibilities and employee rights under the new standard. Employers must maintain written or electronic records verifying compliance with the required training.

The standard also imposes new heat illness prevention housing requirements for agricultural labor housing and related facilities. Agricultural employers should familiarize themselves with the requirements found in OAR 437-004-1120(25).

Additional High Heat Requirements for Covered Employers (90°F or higher)

In addition to the key requirements set forth above, employers must also implement these high heat practices when the heat index exceeds 90°F:

  1.  Maintain reliable and effective means of communication so that employees can contact a supervisor when necessary.
  2. Monitor employees for signs of heat illness through regular communication with employees working alone, a mandatory buddy system, or other equally effective means of observation or communication.
  3. Designate and equip at least one employee at each site who can call for emergency medical services and allow others to contact emergency services when the designated person is not available.
  4. Measure the temperature and humidity of buildings and structures that do not have a mechanical ventilation system.
  5. Develop and implement a written heat illness prevention rest break schedule. Employers must choose one of three rest break options set forth in the new rules.

Exemptions

Employers should evaluate whether their workplaces or operations are fully or partially exempt from the new standard.

Full Exemptions: Buildings and structures with mechanical ventilation that keeps the indoor heat index less than 80°F; incidental heat exposures from work activities (no more than 15 minutes in any 60-minute period); exposures to heat generated from the work process; and all emergency operations that are directly involved in the protection of life or property, or the restoration of essential services.

Partial Exemptions: Employees who perform only “rest” or “light” workloads; associated support activities for wildland firefighters; and employees who work from home. Sitting and thinking are considered “rest” workloads, while a “light” workload is one that involves sitting or standing with minimal arm and legal work.

Partially exempt employers should take care to understand when, and from which provisions, they are exempt. For example, an employer whose employees perform “rest” or “light” work are exempt from the standard’s key requirements only when the heat index is less than 90°F. If the heat index is 90°F or higher, that employer is no longer exempt and must comply with all requirements (e.g., providing shade and drinking water), including the high heat practices.

If you have questions about this blog, please reach out to the Jackson Lewis attorney with whom you often work, the authors of this blog, or any member of our Workplace Safety and Health Team.

It may come as a surprise to some, but Cal/OSHA’s workplace violence regulations currently apply only to the Health Care Industry. Cal/OSHA plans to change that.

Right now, for non-healthcare industries, Cal/OSHA regulates workplace violence using the employer’s obligation to regularly identify and evaluate workplace hazards under Section 3203, California’s version of the general duty clause.

Cal/OSHA recently released a revised draft regulation for workplace violence prevention to apply to general industry, not just health care,  proposing a broad application of the standards with limited exceptions.

Read the full article on Jackson Lewis’ California Workplace Law Blog.

The Occupational Safety and Health Administration (OSHA) has published a proposed rule to restore and expand Obama-era requirements for high-hazard employers with at least 100 employees to submit their injury and illness forms electronically to the agency.

To read the article in its entirety, please click here.

OSHA has just announced it is partially reopening the record on the rulemaking for the permanent healthcare COVID-19 standard known as the rule on Occupational Exposure to COVID-19 in Healthcare Settings. Comments are due by April 22, 2022. The docket number is OSHA-2020-0004. Following the written comments, there will also be a hearing held online on April 27, 2022. Individuals interested in testifying must submit their notice of intention to appear no later than 14 days after publication in the Federal Register, which will occur on March 23, 2022.

OSHA is soliciting information and feedback on these issues:

1. Alignment with the CDC’s recommendations for healthcare infection control procedures.
2. Additional flexibility for employers.
3. Removal of scope exemptions.
4. Tailoring controls to address interactions with people with suspected or confirmed COVID-19.
5. Employer support for employees who wish to be vaccinated.
6. Limited coverage of construction activities in healthcare settings.
7. COVID-19 recordkeeping and reporting provisions.
8. Triggering requirements based on community transmission levels.
9. The potential evolution of SARS-CoV-2 into a second novel strain.
10. The health effects and risk of COVID-19 since the ETS was issued.

OSHA cautions employers that until there is a permanent standard, healthcare employers should still comply with the terms of the healthcare ETS and is currently in the midst of a 3-month blitz of follow-up inspections in the healthcare industry. Employers who are following the healthcare COVID-19 ETS will have a safe harbor from citations under the general duty clause, respirator and recordkeeping standards.

If you have questions or need assistance with drafting and submitting comments for the healthcare COVID-19 rulemaking or need assistance with any other OSHA matters, please reach out to the Jackson Lewis attorney with whom you regularly work or any member of our Workplace Safety and Health Practice Group.