Recently, The Times-Picayune | The 乐播传媒 published the need for heat-related protections for Louisiana workers in the form of a rule from the Occupational Safety and Health Administration.
The piece should also serve as a warning sign for employers. As a labor and employment attorney who practices in the area of OSHA defense, my clients are often asking how they can comply with the ever-changing landscape of federal law and keep their employees safe.
On Aug. 30, OSHA published in the Federal Register a proposed rule addressing indoor and outdoor heat standards for workers. While this rule is currently going through the 120-day notice and comment period and is not law of the land just yet, few employers are aware that they already have a duty to protect workers from heat-related hazards.
Employers can be cited for heat-related hazards, heat illness and heat injury under OSHA鈥檚 General Duty clause, which requires employers to furnish a place of employment 鈥渇ree from recognized hazards that are causing or are likely to cause death or serious physical harm.鈥
Adrienne Wood
This broad mandate enables OSHA to cite employers when OSHA determines a workplace to be unsafe, and because of the far-reaching nature of the General Duty clause, it is often difficult for employers to dispute these citations. That could change based on recent Supreme Court decisions, but it hasn't yet.
Although OSHA does have a history of citing employers for heat hazards, some employers have successfully challenged those citations before the Occupational Safety and Health Review Commission.
It is also worth noting that as of April 8, 2022, OSHA established a National Emphasis Program (鈥淣EP鈥) on Outdoor and Indoor Heat-Related Hazards that is in effect for three years and could even be extended. What this means is that OSHA, for the first time, has a nationwide enforcement mechanism to proactively inspect workplaces for heat-related hazards.
Under this program, OSHA is able to generate employer inspection lists at random and then conduct inspections of indoor and outdoor employers on those lists without advance warning.
With the NEP, OSHA can conduct inspections at workplaces that fall within certain industries on any day that the National Weather Service has announced a heat warning or advisory for the local area, both of which are commonplace in Louisiana. OSHA has conducted more than 5,000 inspections at workplaces with heightened exposures to heat-related hazards.
OSHA has made its intentions clear: Workplaces should be free from heat-related hazards including excessive occupational heat. Some of the sectors within the Louisiana economy that will be most affected by OSHA鈥檚 proposed rule are offshore oil and gas production, maritime and petrochemical facilities. Workers in those jobs often face high temperatures and hot equipment and must wear heavy safety gear.聽
Louisiana also has a vast manufacturing sector which includes workplaces that OSHA frequently inspects for other non-heat related safety issues and may also identify heat hazards while on-site. Some other industries that OSHA has listed as targets of this NEP (there are over 70) are farming and agriculture, hospitality, construction, landscaping, delivery services and automotive.
While OSHA鈥檚 heat rule is not yet in effect,聽the proposed rule includes temperature triggers that will require employers to undertake certain safety measures. Those triggers include duties employers have to implement when temperatures hit a heat index of 80 degrees and additional duties when the temperature hits a heat index of 90 degrees.
Any Louisianan knows that these are temperatures we experience the majority of the year so our industries, employers, and employees will be impacted by this rule. Whether OSHA鈥檚 indoor and outdoor heat standard will become law of the land is unknown, as court challenges will surely arise, OSHA has other tools in its toolbelt to hold employers accountable when it comes to heat illness and injury.
Employers in Louisiana need to be ready.