By Peter S. Hicks, Shareholder, and Robyn L. Stein, Staff Attorney
On July 8, 2021, OSHA-Oregon passed two temporary rules to address exposure to high ambient temperatures, OAR 437-002-0155 and OAR 437-004-1130. The rules are identical, adding a specific rule to the General Occupational Safety and Health Rules and a specific rule to the administrative rules on Agriculture. These rules are immediately in effect for 180 days, and will likely be replaced by final heat rules that OSHA-Oregon is in the process of enacting.
The rules are based on ambient heat index temperature, triggering certain required actions when an employee performs work in conditions where the ambient heat index equals or exceeds 80ºF, and additional “high-heat practices” when the ambient heat index exceeds 90ºF. These actions are described in more detail below. The heat index in a work area is calculated using equations published by the National Oceanic and Atmospheric Administration’s National Weather Service. The rules do not expressly place the onus of calculating the heat index on employers, but we believe that to be the case based on how the rules are written. Employers can determine the heat index by using the OSHA-NIOSH Heat Safety Tool App (https://www.cdc.gov/niosh/topics/heatstress/heatapp.html) or the online calculator available from the National Weather Service (https://www.wpc.ncep.noaa.gov/html/heatindex.shtml.
- When the heat index is 80ºF or higher, employers must establish and maintain shade areas meeting the following criteria:
- Open to the air or have mechanical ventilation for cooling;
- Accommodate the number of employees on recovery or rest periods so that they can sit a normal posture, fully in shade;
- Located as close as practicable to the work area; and
- During meal periods must be large enough to accommodate the number of employees on the meal period that remain on site.
If providing shade is not safe or feasible, employers must implement alternative cooling measures that provide equivalent protection.
Employers must also provide ample opportunities to drink water and ensure an adequate supply (32 ounces per hour for each employee) is readily accessible at all times and at no cost when the heat index in the work area equals or exceeds 80ºF. Drinking water should be replenished throughout the work shift.
When the ambient heat index exceeds 90ºF, employers must ensure employees take a minimum 10-minute preventative cool down rest period in the shade at least every two hours, regardless of shift length. Breaks may be provided concurrently with required meal or rest periods, except for unpaid meal breaks–the preventative cool down rest period must be compensated. Employers must also ensure effective communication so employees can contact supervisors when necessary and observe employees for alertness and heat-related illness by regularly communicating with employees working alone, creating a mandatory buddy system, or implementing other equally effective means of observation or communication. One or more employees must also be designated and equipped at each worksite to call for EMS and allow other employees to call for EMS.
The Rules further require that employees reasonably expected to be exposed to high heat conditions must be trained on heat-related illness and prevention by August 1, 2021. Before beginning work, employees must be trained in:
- Environmental and personal risk factors for heat illness and the added burden of the heat load on the body caused by exertion, clothing, and PPE;
- Procedures for the employer’s responsibility to provide drinking water, daily heat index information, shade and cool-down periods, how to report heat-related illness, access to first aid, and protections from retaliation;
- Importance of immediately reporting heat illness in themselves and co-workers;
- Effects of non-occupational factors on tolerance to occupational heat stress; and
- Types of heat-related illnesses and common signs and symptoms of heat-related illness.
Employers must develop and implement an effective emergency medical plan when ambient heat index exceeds 90ºF, including how to respond to heat-related illness, how to implement first aid measures, and how EMS will be provided. When illness is observed, supervisors are required to take immediate action including relieving employees from duty and providing means to reduce body temperature (e.g., cooling blankets, fan), and immediately implementing emergency response procedures if indicators of severe illness (decreased consciousness, staggering, vomiting, disorientation, irrational behavior, convulsions) are observed. Any employee exhibiting signs/symptoms cannot be left alone or sent home without offering onsite first aid or EMS. Procedures for contacting EMS, providing precise directions to the work site, and transporting employees to a location where then can be readily reached by EMS must also be established.
Finally, the rules require employers to develop and implement effective acclimatization practices when the ambient heat index exceeds 90ºF. “Acclimatization” is defined in the rules as “temporary adaptation of the body to work in the heat that occurs gradually when a person is exposed to it.” However, there is currently no guidance from OSHA-Oregon as to what an effective acclimatization practice might entail.
Given the high priority OSHA-Oregon has placed on these rules, employers should immediately begin implementing these practices. Jordan Ramis is ready to provide any assistance and guidance that may be helpful for implementation of the rules. We anticipate that the Agency will provide additional guidance on the rules in the near future, and Jordan Ramis will also be ready and available to provide any assistance that may be helpful for interpreting that guidance as well.
Peter Hicks is an employment and commercial litigation attorney and shareholder at Jordan Ramis PC. He can be reached at (541) 797-2079 or firstname.lastname@example.org.
Robyn Stein’s practice focuses on state and federal court appeals and litigation for clients on general business issues, as well as in the areas of labor and employment and bankruptcy and creditors’ rights. She can be reached at (503) 598-5535 or email@example.com.