New Heat Standard on the Horizon in Virginia

Virginia has felt the heat to implement a heat illness standard. Public Citizen has petitioned for such a standard, and Members of the General Assembly have introduced three bills directing Virginia Occupational and Health ("VOSH”) to promulgate a heat illness standard to address: 

• Definitions for such terms as acclimatization, environmental risk factors, heat illness, heat wave, personal risk factors, shade, and temperature;
• Application to indoor and outdoor workplaces covered by VOSH;
  Access to potable drinking water, and electrolytes as needed; 
• Cool down rest periods with access to shade or a climate-controlled environment at certain temperature trigger levels for outdoor and indoor work; 
• Additional communication, observation, monitoring requirements, first aid and emergency response requirements at certain temperature trigger levels; 
• Employee and supervisory training on heat illness hazards and preventative measures; 
  Requirement for a written heat illness prevent plan; and 
• Special requirements for construction and other industries when the temperature equals or exceeds 90° Fahrenheit.

The requirements listed largely mirror existing regulations from other states and federal guidelines which will also be used for consideration. A new standard will certainly impact construction sites, as four of the last five investigations VOSH has conducted regarding heat related fatalities have occurred at construction sites. Construction sites are surely among the workplaces being targeted as the industry has had one of the highest rates of heat related deaths and injuries over the last few years. 

VOSH has published a Notice of Intended Regulatory Action for a heat illness standard, and it held a public comment period last May and June. The Associated General Contractors of Virginia (AGCVA) provided comments cautioning "that a one-size-fits-all approach will harm the employer’s ability to specifically develop regulations to protect employees from heat related illnesses.”  AGCVA noted that construction employers’ use of guidance provided by the Occupational Safety and Health Administration (OSHA) has worked, and that a Virginia unique standard would make Virginia an outlier with additional and new requirements.

Proposed Federal Standard

This past spring, OSHA announced its intention to implement a new heat illness standard that will apply to both indoor and outdoor work environments. Construction sites are surely among the workplaces being targeted as the industry has had one of the highest rates of heat related deaths and injuries over the last few years. 

President Biden has made heat a point of emphasis for OSHA as 2020 tied for the hottest year on record and intensifying heat waves put more and more workers at risk. While campaigning, Biden promised to be "the most pro-union president you have ever seen” and this is one step he is taking to prove it.

The federal proposed standard is in its preliminary stages and its contents are not yet clear. However, like the Virginia rule, it will likely be based on the few state standards already in place. The OSHA standard may mandate break times and require employers to monitor employee acclimatization, as well as temperatures and humidity levels. 

Such provisions could be very consequential for construction as imposed break times can delay project completion greatly and increase the number of workers needed on site. Also, as heat waves intensify, employers will feel a greater burden and responsibility while trying to ensure employee safety, especially those who require workers to wear heavy forms of personal protective equipment.

Concerns About the Heat Standard

Kevin Cannon, the senior director of safety and health services for Associated General Contractors, opposed a federal heat standard at a 2019 hearing with the U.S. House Committee on Education and Labor Workforce Protections Subcommittee. At the hearing, he concluded that a new standard would be "unnecessary, unworkable, and impractical.” He said there "is no one-size-fits-all approach” to address the issue because of variables between state climates and employee health, among other considerations. He also pointed out that the General Duty Clause of the Occupational Safety and Health Act was sufficient to protect workers from extreme heat exposure because construction employers recognize the hazard and OSHA actively conducts numerous heat related investigations each year. 

Some employers in construction might find a new standard difficult to manage because of the nature of the industry. Construction can often involve urgent work or emergency repairs. It is unclear whether a standard will accommodate employers who are pressed for time and would be hindered greatly if employees had to take breaks constantly. Also, the sprawling nature of some work sites might present difficulties for providing shade for all employees at once or monitoring health at all times.

General Duty Clause

Historically, as noted by Cannon, OSHA has protected workers against extreme heat by using the General Duty Clause, a "catch-all” provision in the Occupational Safety and Health Act that requires employers to provide employment and places of employment that are free of recognized hazards, which, in the past, has included heat exposure. OSHA noted that in a 2019 case, A.H. Sturgill Roofing Co. v. Secretary of Labor, the Occupational Safety and Health Review Commission (OSHRC) set a high bar for use of the General Duty Clause in cases involving heat exposure and other potentially dangerous environmental conditions. In 2020, an OSHRC judge followed Sturgill and overturned five heat hazard citations against the U.S. Postal Service, holding that OSHA could not rely on a National Weather Service guide to determine heat severity.

Heat Standards In Other States

Heat illness prevention has become a "hot topic” in other states as well lately. In fact, within the last two weeks, Oregon and Washington issued emergency heat standards. In Washington, the emergency standard was promulgated in addition to its permanent heat standard, but recent intense heat waves in the Pacific Northwest pushed officials to implement extreme heat protections. 

Heat has also been at the front of California OSHA’s (Cal/OSHA) mind in recent years. Cal/OSHA have used its heat standard to conduct 50 times more heat related investigations than federal OSHA using the General Duty Clause. Some provisions of the California rule are access to shade, acclimatization, training, emergency response procedures, high-heat procedures, and the implementation of a Heat Illness Prevention Plan. 

OSHA Recommendations

There are a few best practices construction employers can implement to help prevent heat related issues from happening. Currently, OSHA provides guidance on "Working In Outdoor and Indoor Heat Environments,” and it suggests that employers:

• Provide workers with water, rest and shade*.
• Allow new or returning workers to gradually increase workloads and take more frequent breaks as they acclimatize or build a tolerance for working in the heat.
• Plan for emergencies and train workers on prevention.
• Monitor workers for signs of illness.

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Courtney Malveaux is a Principal in the Richmond, Virginia office of Jackson Lewis P.C. and Co-Leader of the firm’s Workplace Safety and Health Practice Group. Mr. Malveaux represents employers cited by the Occupational Safety and Health Administration and other regulatory agencies. He also advises and represents employers in employment law matters, including retaliation claims, employment discrimination, unemployment benefits and wage claims. Mr. Malveaux also represents business associations in state and federal legislative and regulatory matters, and he represents industrial employers on the Virginia Safety and Health Codes Board.

Before joining Jackson Lewis, Mr. Malveaux enforced occupational safety and health laws and other state and federal labor laws as Virginia’s Labor Commissioner and he served as President of the National Association of Government Labor Officials. Mr. Malveaux can be reached at Courtney.Malveaux@jacksonlewis.com or at (804) 212-2862.