Employers still on hook despite halt of OSHA’s heat rulemaking: Experts

Safety experts warn that employers should still prepare to manage workplace safety conditions during extreme temperatures this summer despite the Trump administration’s freeze on rulemaking that took effect in January.

“The likelihood of (the U.S. Occupational Safety and Health Administration) moving forward with a final heat rulemaking in the current administration appears remote, given that OSHA has removed the previous references to the heat injury and illness prevention rulemaking from its website,” said Andrew Brought, a Kansas City, Missouri-based attorney with Spencer Fane LLP.

OSHA had been developing a rule for employers to manage workplace heat when the new administration took over. The proposed rule, which was in the middle of a public comment period, was controversial because it included a wide range of industries, according to experts.

Meanwhile, state regulators have created their own policies for employers in at least seven states, according to Rachel Conn, San Francisco-based chair of the California practice, workplace safety practice group, at Conn Maciel Carey LLP. Lawmakers in one state — Massachusetts —are now working on a bill to create a heat policy for workplaces.

Ms. Conn said the mixed bag of policies can be problematic for employers with operations in multiple states. While some of the policies are similar, there’s “no consistency,” she said.

Some heat rules — such as mandatory water and shade, rest and acclimation periods, and record-keeping — mirror what the federal government had been proposing.

“It can get very complicated and cumbersome for (national) employers to get in compliance,” Ms. Conn said. “Having a reasonable federal rule would actually … make it easier for national employers.”

In states not governed by specific rules, OSHA can and will likely still investigate safety practices when there is a heat illness or death and can cite companies under the catch-all General Duty Clause, which requires employers to maintain safe work sites, said Courtney Malveaux, a partner with McGuireWoods LLP based in Richmond, Virginia.

And given that there’s greater attention and advocacy surrounding workplace heat illnesses and deaths, employers should follow common sense protocols, Mr. Malveaux said.

A former Virginia labor commissioner, Mr. Malveaux recalls a time when heat illnesses were considered the fault of the worker.

“We had people who died at work, and I would get a first report of fatality on my cellphone.

“It could be a school bus driver walking across the parking lot to the school bus and collapsing, and we would say, ‘Oh, well, you know, he’s overweight. It’s a hot day. He had hypertension. It’s natural causes.’ Those days are over because OSHA no longer looks at deaths as natural causes,” he said.

And there’s some indication that OSHA will continue to cite, according to John Ho, a labor and employment attorney and chair of Cozen O’Connor P.C.’s OSHA practice in New York.

“A heat national emphasis program that was set to expire in April 2025 was recently extended by a year, so there’s still some activity going on with respect to heat stress,” he wrote in an email. OSHA issued its extension on Jan. 16, four days before the presidential inauguration.

Heather Chapman, Grand Rapids, Michigan-based head of safety & risk at Soter Analytics, which develops risk management programs for companies, tells clients to prepare to protect workers.

“There’s still a national emphasis program that’s in place, so, in theory, employers should be abiding by that,” she said. “And despite the lack of clarity on whether we’ll actually see a federal standard, lots of (safety) organizations are still producing content around heat stress. That’s webinars, training, documents, template programs, and those are still available and accessible to employers.”