Keep Track of Changes at OSHA, Part 1: Regulatory Update, 2023-2024

This is part one of a two-part update on changes at the Occupational Safety and Health Administration (OSHA). Part one discusses the regulatory changes OSHA made during fiscal year (FY) 2024. The most recent regulatory changes at OSHA have been the Employee Representative Walk-Around Rule (effective May 31, 2024), the Proposed Emergency Response Standard (published February 5, 2024, and set for a hearing on November 12, 2024), and the Proposed Indoor and Outdoor Heat Injury and Illness Prevention Standard (published August 30, 2024, with comment period until December 30, 2024).

Walk-Around Rule

The walk-around rule that appears to allow OSHA to bring in a union agent to a nonunion plant—or a plaintiff’s attorney without prior authorization or warning—is the subject of a lawsuit by the U.S. Chamber of Commerce in the Western District of Texas. The Chamber has filed a motion for summary judgment (dismissal without a trial) to strike down the rule, and the government has filed a cross motion saying the employer organizations have no standing because nothing has happened to their members. Also, the government is arguing OSHA is entitled to deference in the interpretation of the statute. The Chamber has replied.

One can only hope the court will grant the Chamber’s motion for summary judgment, but in the meantime—and we know it will be appealed either way—what do we do?

One idea that almost everyone is reluctant to do is to refuse entry and require a warrant in those narrow circumstances. If the magistrate issues the warrant, then the employer would have to go through a contempt proceeding and win. However, so many employer’s lawyers are uncomfortable with that. If the visit results in the union taking over under the quickie elections or card recognition, or a big lawsuit by a plaintiff’s lawyer, the employer might weigh such risks with counsel beforehand.

Heat Standard

The Proposed Indoor and Outdoor Heat Injury and Illness Prevention Standard—which OSHA published in the Federal Register on August 30, 2024, and is open for comment until December 30, 2024—would apply to each and every employer in the United States except state and local government employers, unless the state has adopted a state plan or has otherwise applied federal OSHA to public employers.

Reminiscent of the COVID-19 Emergency Temporary Standard, the heat standard proposed is very extensive and pervasive, especially the acclimatization requirement in which the employer has to pay the employee for only working 20-40-60 and 80 percent of the workday for the first four days. Some might say that in large companies, the first week is orientation anyway. But what about the vast majority of employers that don’t have the time or flexibility, or employers of temporary laborers, outdoor laborers, and others, whose cost of doing business would skyrocket?

Here are the main features of the proposed heat standard:

• Employers with over 10 employees must have a written heat injury and illness prevention program.
• It must list the type of work activities in each area of the plant and be site-specific for outdoor and mobile work.
• There must be monitoring in each indoor area and near the outdoor work areas.
• The initial trigger point is 80 degrees, and the high heat point is 90 degrees.
• Heat records must be kept for 6 months.
• There must be an acclimatization period of five days before the employer can fully employ the employee and pay the eight-hour day each of those days.
• Employees must receive extensive training at hire, whenever there is a change in condition, change of duties, any recordable heat-related incident, and annually.
• Employees must receive training in their primary language at their literacy level.
• Heat safety coordinators must be appointed, again with extensive training for them and the supervisors.

Formulae can be avoided if the employer just implements all of the measures in the standard. Employees must be trained on pre-existing conditions, and presumably the employer must trust them to exercise their judgment based on Americans with Disabilities Act (ADA) constraints. It isn’t hard to imagine challenges to the heat standard under the major questions doctrine and the Loper Bright decision.

Emergency Response Standard

The emergency response standard covering fire departments and emergency medical services (EMS) responding organizations is also very pervasive but perhaps not at first blush. It replaces the fire brigade standards used less and less in plants.

Some might think fire and EMS departments are mostly state and local entities not of concern to the private sector. In reviewing the proposed standard—with its physical requirements, training requirements, incorporation by reference of at least 22 so-called industry consensus standards—the question arises: Will our local fire department upon which we rely to handle confined-space rescue, fires, hazardous material spills, chemical releases, etc. be able to do all of this?

In many communities, the local fire and EMS will not be able to implement the requirements, and comments to OSHA have largely predicted many volunteer fire departments will likely close down. The emerging backlash has resulted in OSHA scheduling a November 12 hearing. Companies might consider meeting with local fire and EMS upon which they rely and ask them if this is feasible and join with them in making comments. While the proposed standard claims not to cover volunteers, the fine print is that any compensated volunteer is covered in a state plan state. Certain federal OSHA states have adopted OSHA standards under state law.

OSHA will likely use the proposed standards to argue notice to employers and cite under the general duty clause. So in the meantime, written programs that generally follow the proposed standards might be prudent.

Finally, the amendments to the hazard communication standard in which OSHA harmonizes with the rest of the world on an occasional basis have improved certain aspects of compliance. For example, companies transporting chemicals from one of their own plants to another have been required to label the containers of chemicals, but now with the new hazard communication standard amendments, companies simply will have to email the hazards to the next plant or keep them informed rather than going through all of those earlier labelling procedures.

William “Bill” Wahoff is an attorney with Steptoe & Johnson PLLC in Columbus, Ohio, and can be reached at bill.wahoff@steptoe-johnson.com.

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