GOVERNMENT AFFAIRS UPDATES – 03/31/2023
LEGISLATION UPDATE – HEAT STRESS
provided by: Asher Tobin – Chapter Government Affairs Chair
Specifically, employees in the construction, agricultural, waste collection, transportation and logistics, warehouse, manufacturing, bakery, laundry, commercial printing, commercial kitchen and food service operations, oil and gas drilling operations, and freight sectors would be most impacted and greatly benefit from a standard on the prevention of heat-related injury and illness. Further, it is important to consider the impact of heat-related injuries illnesses (HRIs) in workers in healthcare, hazardous waste remediation operations, and disaster site clean-up who also experience HRIs because of the physical labor they perform and the personal protective equipment they must wear. Finally, consider workers in the customer service industry like flight attendants1 and restaurant workers who traditionally work in air-conditioned environments, but can experience heat-related illnesses because of the physical labor they exert over a sustained period at a high pace and in a high-stress work environment.
In the United States, employees are entitled to a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm,” per the OSH Act of 1970. However, millions of workers are injured, and thousands of workers die every year from work-related injuries (BLS, 2020)2. Exposure to thermal stressors like environmental heat contributes to the growing number of occupational injuries experienced each year by outdoor and indoor workers in poorly ventilated or uncooled indoor environments.
Unfortunately, robust surveillance systems that accurately capture heat-related occupational illness and injury data are lacking. A national emphasis program focused on heat-related injuries and illnesses would prove useful in designing effective interventions to improve workplace safety and health. Further, a federal occupational standard on the prevention of heat-related illnesses and injuries would be an invaluable tool in the enforcement of worker protections and provide an avenue to overcome the significant challenges associated with citing bad actors under the general duty clause (TOSH Review Commission v. Nelson et.al).
Below are snapshots obtained from various news articles on the effects of laboring in hot work environments.
“Employers working in a metal warehouse here with no air conditioning filed a complaint last week against their employer with the Tennessee Occupational Safety and Health Administration (OSHA) for what they say are extremely hot working conditions. At XPO Logistics’ Verizon warehouse here, workers claim to have experienced “instances of extreme heat leading to dizziness, dehydration, and fainting,” according to the complaint. During a recent three-day period, the heat index near the warehouse exceeded OSHA’s “extreme caution” threshold during the majority of working hours, workers said” (Memphis Flyer, 2018)
“Summer temperatures inside the warehouse regularly exceeded 100 degrees, the current and former employees said. It was so hot and humid that workers sometimes found it hard to breathe. Every week from June through September 2017, at least one worker collapsed on the warehouse floor, the employees said. Supervisors took to wheeling the sick workers to the break room, where they sometimes received an ice pop. On the morning of Oct. 17, 2017, Linda Neal crashed to the warehouse floor, dead of cardiac arrest.” (New York Times, 2018)
“Jim Klenk, a United Parcel Service (UPS) driver in New Jersey, was hospitalized in 2016 because heat-related illness caused his kidneys to fail. In July 2018, a 63-year-old USPS worker in Woodland Hills, California was found dead in her vehicle, on a day that reached 115 degrees Fahrenheit. At least five other mail carriers have died from heat-related complications since 2012, with dozens more facing hospitalization each year.” (NRDC, 2019
While OSHA has cited and issued fines to employers for unsafe working conditions, the lack of a federal heat standard makes it difficult for the agency to enforce heat-related worker protections resulting in the issuance of largely ineffective hazard letters and fines that are absurdly reduced if not entirely dismissed. In states that operate OSHA-approved state plans7 covering private sector workplaces but have no state standard on HRI’s, it is even more difficult for workers to get adequate government oversight concerning complaints of hazardous heat-related working conditions.
- Background: Occupational Illness, Injuries, and Fatalities Due to Hazardous Heat, Underreporting of Illness, Injuries, and Fatalities Due to Hazardous Heat, and Scope of the Industries Impacted.
(Q-1) What are the occupational health or safety impacts of hazardous heat exposure?
Occupational exposure to high heat environments can contribute to several dangerous health-related conditions in workers performing duties in outdoor work environments and poorly-ventilated or uncooled indoor work environments. Dehydration, heat cramps, vomiting, and loss of consciousness are common symptoms of heat exposure, as well as the exacerbation of existing health conditions like asthma and heart disease.
“Heat-related disorders can arise from stress due to increased air temperature, humidity, radiant heat, and metabolic heat from strenuous physical work (Weeks et al. 1991). When ambient temperatures are high, the body becomes dependent on evaporative cooling and is susceptible to anything that restricts evaporation, such as high humidity, clothing, and low air movement (Budd 2008). As body temperature rises, cardiovascular strain increases as more blood is pumped through the skin and additional sweat is secreted, accelerating dehydration (Budd 2008).”
* Federal Register :: Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings; Extension of Comment Period<https://nam11.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.federalregister.gov%2Fdocuments%2F2021%2F12%2F03%2F2021-26269%2Fheat-injury-and-illness-prevention-in-outdoor-and-indoor-work-settings-extension-of-comment-period&data=05%7C01%7Cjturnwald%40central-insurance.com%7C6b7ce0c6f60b413809d508db2f955d6f%7C5cba8c90839f47c69d393955fe8ba587%7C0%7C1%7C638156090805945583%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=KCkaRHeBiQ4zkrahDLGcEabyFOEY6rUFfQW76EV%2F7d8%3D&reserved=0>
* The comment period for the ANPRM that was published at 86 FR 59309<https://nam11.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.federalregister.gov%2Fcitation%2F86-FR-59309&data=05%7C01%7Cjturnwald%40central-insurance.com%7C6b7ce0c6f60b413809d508db2f955d6f%7C5cba8c90839f47c69d393955fe8ba587%7C0%7C1%7C638156090805945583%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=liZal%2F1b7Me%2FPdnwLy2T4Dgpnssrms32cYJAmoLfoiI%3D&reserved=0> on October 27, 2021, is extended. Comments on any aspect of the ANPRM must be submitted by January 26, 2022.
* Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings Rulemaking | Occupational Safety and Health Administration (osha.gov)<https://nam11.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.osha.gov%2Fheat-exposure%2Frulemaking&data=05%7C01%7Cjturnwald%40central-insurance.com%7C6b7ce0c6f60b413809d508db2f955d6f%7C5cba8c90839f47c69d393955fe8ba587%7C0%7C1%7C638156090805945583%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=xXP4%2BlaWRsPEosC%2BF3Ry%2FF5nNNso2Z%2BzSPYIyivNv48%3D&reserved=0>
* National Emphasis Program – Outdoor and Indoor Heat-Related Hazards (osha.gov)<https://nam11.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.osha.gov%2Fsites%2Fdefault%2Ffiles%2Fenforcement%2Fdirectives%2FCPL_03-00-024.pdf&data=05%7C01%7Cjturnwald%40central-insurance.com%7C6b7ce0c6f60b413809d508db2f955d6f%7C5cba8c90839f47c69d393955fe8ba587%7C0%7C1%7C638156090805945583%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=zuStaC46V%2BF2ZyLAcgFlmfKsvQSDYWRT52X1dFyJ00o%3D&reserved=0> – I believe you all already sent this out
* This Instruction describes policies and procedures for implementing a National Emphasis Program (NEP) to protect employees from heat-related hazards and resulting injuries and illnesses in outdoor and indoor workplaces. This NEP expands on the agency’s ongoing heat-related illness prevention initiative and campaign by setting forth a targeted enforcement component and reiterating its compliance assistance and outreach efforts. This approach is intended to encourage early interventions by employers to prevent illnesses and deaths among workers during high heat conditions, such as working outdoors in a local area experiencing a heat wave, as announced by the National Weather Service. Early interventions include, but are not limited to, implementing water, rest, shade, training, and acclimatization procedures for new or returning employees.
On a side note this is very important campaign the chapter might want to get on CPWR | Struck-By Hazards<https://nam11.safelinks.protection.outlook.com/?url=https%3A%2F%2Fwww.cpwr.com%2Fresearch%2Fresearch-to-practice-r2p%2Fr2p-library%2Fother-resources-for-stakeholders%2Fstruck-by-hazards%2F&data=05%7C01%7Cjturnwald%40central-insurance.com%7C6b7ce0c6f60b413809d508db2f955d6f%7C5cba8c90839f47c69d393955fe8ba587%7C0%7C1%7C638156090806101825%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=UMxTABCkHkEruI5%2BPhusw5maYk7sCHk%2BACiwIi%2FJ8Lg%3D&reserved=0>
4 OSHA Issues to Follow in Early 2021
James Thornton, CSP, CIH, FASSP | Chair, ASSP Government Affairs Committee
It would be fascinating to travel into the future and see what history will say about 2020 . As the year closes out, we all have experienced life-altering events that will be forever etched in our memories. Time will determine the impact of these events, but certainly “new normals” have and will be formed. Virtually every facet of our lives has changed – socially, financially and professionally. The same is true of occupational safety and health (OSH) professionals. Throughout our careers, we have used our education and skills to help workers return safely to their families at the end of their workday. During COVID-19, many of us are using technology to perform those tasks from afar. We have had to learn new skills and alter our behaviors. We have all been challenged in new ways. OSHA has been similarly impacted by the pandemic. Agency personnel have coped with COVID-19 while also working to help employers address hazards arising in essential industries. Like ASSP, during the pandemic, OSHA has had to reflect on how best to pursue its mission in the face of adversity and make many operational adjustments to meet that challenge. As of this writing, a new administration will be in place in January 2021 and it will likely have a much different approach to OSH. As a result, the agency will be expected to quickly transition to a new operating philosophy.
Here’s a look at four key issues facing OSHA in early 2021:
1. Agency Leadership
OSHA has been without an assistant secretary for this entire Trump Administration. Despite this, thanks to the leadership of an acting administrator, the agency has made progress and engaged effectively with key stakeholders, including professional organizations like ASSP, organized labor groups and employer groups. What will happen with the incoming administration? The names of several candidates for this position are being discussed, and OSH organizations like ASSP have been contacted for information about them. While the question of the Senate majority remains unknown for now, it’s likely the incoming administration will quickly nominate a candidate and begin the confirmation process.
2. Regulatory Enforcement
OSHA is perpetually challenged about the annual number of inspections performed. It seems to be THE metric against which the agency is gauged. Labor always demands more, while management always wants fewer. Much less focus is placed on the actual depth of the inspections. At the beginning of the current administration, labor groups voiced concern that the number of inspections would be dramatically reduced. From 2016 to 2018, the number of annual inspections has remained fairly steady at approximately 32,000. Additionally, many inspections have generated relatively high levels of penalties consistent with past practice.
Consequently, there appears to be a relative level of acceptance about to the number of inspections. OSHA has established policies with respect to inspections in industries returning in the wake of COVID-19, although the current resurgence is affecting many of these industries. This will certainly affect the number and type of inspections performed in 2021, and there also appears to be several formal employee complaints generated from COVID activities. And while the agency has a well-structured, sustainable plan for performing inspections given its current staffing levels, it is likely that the new administration will be urged to increase enforcement activities.
3. Federal Safety Regulations
In an effort to obtain a zero-net cost impact to industries, the current administration instituted a “one -in, two-out” order with respect to implementing new federal standards. Despite this executive order, OSHA remained active in rulemaking, promulgated standards and/or compliance guidance on topics such as beryllium, silica, recordkeeping, heat, whistleblowers, medical records and COVID-19. It is important to note that several executive orders issued in 2020 require all government agencies to identify standards that may inhibit economic recovery and rescind/modify/waive requirements as necessary. Several of these orders urge government agencies to use latitude when enforcing standards that have significant impact on economic recovery. Another recent order requires government agencies like OSHA to post all guidance documents on a website, mandating that anything not posted would be viewed as rescinded for enforcement purposes. The new administration will likely reverse these orders. It will also likely reinvigorate standards activity on topics such as workplace violence, heat exposures, infectious diseases and possibly even permissible exposure limits (PELs). As these standard activities increase, ASSP will call on its practice specialty member communities to help formulate our response.
4. Potential Developments
A laundry list of other developments could emerge in the near future. For example:
- The Trump administration may issue some “midnight rules,” although time is running out.
- OSHA is celebrating its 50th anniversary this month. Could a “new and improved” version of OSHA be in the making? The new administration could push for renewed congressional attention to the Protecting America’s Workers Act, which would require significant OSHA reform.
- Any actions related to revising the many outdated PELs would be a significant development for OSH professionals and their organizations.
- OSHA might develop an emergency temporary standard for COVID-19 as we have seen in several states.
- Look for renewed support of federal advisory committees such as NACOSH and MACOSH.
- Other activities could address recordkeeping, guidance on using drones for inspections and the Fair Pay and Safe Workplaces executive order from 2014 that disqualifies contractors with poor safety records from obtaining federal contracts.
ASSP Is Your Advocate The ASSP Government Affairs Committee monitors these issues and represents ASSP members and their interests. The committee works closely with ASSP staff and key connections inside the Beltway to advance our positions on emerging regulations, standards and other matters that could affect our members and/or our profession.
ASSP is a well-respected resource regularly sought out by various governmental agencies. Policymakers view us as an “honest broker” thanks to our straightforward, science-based approach to OSH. In the coming year, the committee will work to develop stronger communications with our regions, chapters and members so we can better represent your interests. Please visit our Government Affairs webpages, subscribe to our newsletter and log in to review our Government Affairs toolkit. If you need help getting started, have a matter of concern for the committee to review or want to get more engaged, please contact the Government Affairs team.
OSHA Seeking Nominations for Advisory Committee on Construction Safety & Health
OSHA is seeking nominations for the Advisory Committee on Construction Safety and Health (ACCSH). Submissions are due by Friday, Jan. 8, 2021. ACCSH advises OSHA on the formulation of standards affecting the construction industry, and on policy matters arising in the administration of the safety and health provisions under the Contract Work Hours and Safety Standards Act and the OSH Act. Those acts require the OSHA administrator to consult with ACCSH before the agency proposes any occupational safety and health standard affecting construction activities.
Nominations must include the following information:
- Nominee’s contact information and current employment or position
- Nominee’s resume or curriculum vitae, including prior membership on ACCSH and other relevant organizations and associations
- Category of membership (employer, employee, public, state safety and health agency) that the nominee is qualified to represent)
- A summary of the background, experience and qualifications that addresses the nominee’s suitability for each of the nominated membership categories
- Articles or other documents the nominee has authored that indicate the nominee’s knowledge, experience and expertise in occupational safety and health, particularly as it pertains to the construction industry
- A statement that the nominee is aware of the nomination, is willing to regularly attend and participate in ACCSH meetings, and has no conflicts of interest that would preclude membership on ACCSH
You may submit nominations and supporting materials electronically; by fax (202-693-1648); or by mail to U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210. For information about the submission requirements, member selections and additional contact information, refer to the Federal Register notice.
GOVERNMENT AFFAIRS UPDATES – 11/11/2020
OSHA Issues Guidance on COVID-19 Related Inspections
Nov 11, 2020
COVID-19 continues to present challenges to safety professionals in protecting workers against exposure to the virus. New OSHA guidance provides employers insight into which OSHA standards have been most frequently cited during COVID-19-related inspections. The agency encourages employers to use this information to take additional steps to safeguard their employees.
These inspections were initiated following referrals, complaints and fatalities in settings and industries including nursing homes and long-term care settings and meat/poultry processing facilities.
The most frequent violations include:
- Not performing appropriate fit testing of respirators
- Failure to keep required records of work-related injuries, illnesses and fatalities
- Improper storage of respirators and other PPE in a way that can damage, contaminate or deform the equipment
- Not conducting an assessment to determine if COVID-19 hazards are present or likely to be present, requiring the use of a respirator and/or other PPE
- Insufficient training on the safe use of respirators and/or other PPE in the workplace
- Failure to establish, implement and update a written respiratory protection program with required site-specific procedures
- Not providing a medical evaluation before workers are fit-tested or use a respirator
The guidance notes that while OSHA has temporarily exercised some enforcement discretion regarding respirators, employers must demonstrate and document good-faith efforts to comply with OSHA standards, as summarized in Understanding Compliance With OSHA’s Respiratory Standard During the Coronavirus Disease (COVID-19) Pandemic.
GOVERNMENT AFFAIRS UPDATES – 10/12/2020
- (October 9, 2020) U.S. Department of Labor Urges Workers, Employers and PublicTo Be Aware of Hazards After Hurricane Delta
ATLANTA, GA – The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) urges response crews and residents in areas affected by Hurricane Delta to be aware of hazards created by flooding, power loss, structural damage, fallen trees, and storm debris.
Recovery efforts after the storm may involve hazards related to restoring electricity and communications, removing debris, repairing water damage, repairing or replacing roofs, and trimming trees. Only individuals with proper training, equipment, and experience should conduct recovery and cleanup activities.
Protective measures after a weather disaster should include:
- Evaluating the work area for hazards;
- Assessing the stability of structures and walking surfaces;
- Ensuring fall protection when working on elevated surfaces;
- Assuming all power lines are live;
- Keeping portable generators outside;
- Operating chainsaws, ladders and other equipment properly; and
- Using personal protective equipment, such as gloves, hard hats, and hearing, foot and eye protection.
“Workers involved in storm cleanup can face a wide range of safety and health hazards,” said OSHA Regional Administrator Kurt Petermeyer in Atlanta, Georgia. “Implementing safe work practices, using appropriate personal protective equipment and ensuring workers are properly trained can help minimize the risk of injuries and fatalities during storm cleanup operations.”
OSHA maintains a comprehensive webpage on hurricane preparedness and response with safety tips to help employers and workers, including an alert on keeping workers safe during flood cleanup. Individuals involved in response and recovery efforts may call OSHA’s toll-free hotline at 800-321-OSHA (6742).
Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.
The mission of the Department of Labor is to foster, promote and develop the welfare of the wage earners, job seekers and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights.
- (October 2, 2020) U.S. Department of Labor Issues Guidance for Using Tight-FittingPowered Air Purifying Respirators Amid Coronavirus Pandemic
WASHINGTON, DC – The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has issued temporary guidance for enforcing initial and annual fit-testing requirements related to tight-fitting powered air-purifying respirators. The action marks the Department’s latest step to ensure the availability of respirators and follows President Donald J. Trump’s Memorandum on Making General Use Respirators Available.
The new enforcement discretion policy permits the use of National Institute for Occupational Safety and Health (NIOSH)-approved tight-fitting powered air-purifying respirators for protection against the coronavirus when initial and/or annual fit testing is infeasible due to respirator and fit-testing supply shortages. The guidance applies to healthcare personnel and other workers in high or very high exposure risk activities.
The guidance does not apply to powered air-purifying respirators that:
- Have not been approved by NIOSH;
- Are used by any workers with low or medium exposure risk to the coronavirus;
- Are used by any workers for protection against airborne hazards other than the coronavirus, such as chemical hazards; or
- Are loose-fitting and do not require fit testing.
If respiratory protection must be used, employers may consider the use of alternative classes of respirators that provide equal or greater protection compared to a N95 Filtering Facepiece Respirator, such as N99, N100, R95, R99, R100, P95, P99, and P100 respirators and NIOSH-approved, non-disposable elastomeric respirators or powered air-purifying respirators, either loose-fitting or tight-fitting.
This interim guidance will take effect immediately and remain in effect until further notice. It is intended to be time-limited to the current public health crisis. Visit OSHA’s Coronavirus webpage regularly for updates. For further information about the coronavirus, please visit the Centers for Disease Control and Prevention.
Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to help ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education, and assistance. For more information, visit www.osha.gov.
The mission of the Department of Labor is to foster, promote, and develop the welfare of the wage earners, job seekers, and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights.