OSHA's Heat Exposure Proposal
Last week, just before the July 4th holiday, the federal Department of Labor’s Occupational Safety and Health Administration (OSHA) released the draft text of its broad new regulation concerning exposure to high heat. These proposed regulations amount to one of the biggest and most burdensome interventions in the employer-employee relationship we’ve seen.
What’s worse, given that this is the massive federal government, the ability to influence or alter these regs is limited. They are writing rules for the entire US economy, and the concerns of just one state and just one industry are easy to ignore. Unlike state legislation where we can talk to the actual lawmakers (and in many cases they are your customers), the bureaucrats who wrote these regs are disconnected from the public. This is not a bill working its way through Congress, where we could present specific concerns to our elected members, but a decision by the Department of Labor, approved by the Presidential Administration. We will of course push them where we can, but realistically the only way these proposed regs will not become law is if Trump wins the presidency this November (and the polls show him not only in the lead, but he is the polling the best he ever has in any election).
The timeline is not entirely clear, they may push to have these regulations in place for next summer, more likely it would be in effect summer 2026. Again, that is unless there is a change in the party control of the presidency this November. It is also possible that these rules will be struck down by the US Supreme Court, which recently has been clear that certain changes in law must be made by explicit legislation passed through Congress and approved by the President, not through regulatory agencies. That could take years though.
This regulation would affect most employees for all members. Gas attendants, repair technicians, tow truck drivers would be the most affected, but most employees who spend more than 15 consecutive minutes exposed to temperatures 80°F or more would have to be covered, even if it's just monitoring a delivery or sweeping up.
Here’s what the regulations are proposing to require for all businesses:
- Requirements for ambient temperature of 80°F+
- Employer must provide access to drinking water
- 32 ounces per hour per person
- Water temperature must be “suitably cool”
- Designate “break areas” for affected workers
- Outdoor workers
- Can be outdoors but must be shaded and open to outside air
- If indoors must be air-conditioned, this can include sitting in a vehicle.
- Indoor workers
- Designated and easily accessible area that must be air-conditioned or have increased air movement from fans
- Must have fans running in indoor work areas without air-conditioning
- Employer must “allow and encourage employees to take paid rest breaks in the break area” if needed to prevent overheating.
- Employer must maintain two-way communications with employees.
- Requirements for 90°F+
- In addition to everything above.
- Employer must provide employees a minimum 15-minute paid rest break in the break area every 2 hours.
- A meal break may count as a rest break, even if it is unpaid.
- The time it takes employees to walk to and from the break area is not included in the 15-minutes.
- Observation for symptoms of heat related illness, employer must implement one of the following:
- Mandatory buddy system in which co-workers observe each other
- Designate a supervisor to observe for symptoms in employees
- If an employee is the only person on site, employer must maintain a means of effective two-way communication and make contact with the employee at least every two hours.
- Notify employees before their shift of
- The importance of drinking plenty of water
- Employees’ right to take rest breaks
- How to seek help and what to do in a health emergency
- “Acclimatizing”
- The rules for 90°F+ must be in effect when the temperature is 80°-90° for:
- New employees for the first week of their employment, unless they have worked in similar conditions in the previous 14 days.
- An employee who has been away from work for 14+ days
- Training
- Prior to working in 80°F+ heat as a new employee, the employer must train them in the symptoms of heat related illness, risk factors, and the protections of these rules.
- Supervisors must also be trained in the protections for all employees and for their specific role.
- All affected employees and supervisors must be given refresher training every year.
- Supplemental training must be given any time there is a heat-related illness at work that results in emergency services being needed or a loss of consciousness, it must also be given to an employee if it appears that have “not retained the necessary understanding”.
- Training must be provided in “a language and literacy level” each employee understands, and employees must be provided with an opportunity for questions and answers.
- Employees must be paid their normal rate of pay for this training.
- Heat Injury and Illness Prevention Plan
- Every employer with affected employees must develop a site-specific heat plan.
- Someone must be designated the “heat safety coordinator”, and the plan must name them, and they must have the power to enforce compliance with these rules.
- Develop and implement an emergency plan for if an employee has a medical emergency caused by the heat.
- If an employee is showing symptoms of illness, the employer must relieve them from duty, monitor them, and ensure they are not left alone.
- Employer must seek the input of and involvement of non-managerial employees in the development and implementation of the plan.
- Must be made available to all employees in a language they understand.
- Monitoring Temperature
- Note that the temperature is measured using “heat index”, which includes humidity, so it’s possible a 78°F humid day would be 80°F under the heat index.
- Outdoor work
- Monitor the local heat index forecast from the National Weather Service
- Or measure directly at the worksite.
- Indoor work
- Employer must monitor the temperature as close as possible to the indoor work site that is expected to be 80°F+.
- The recordings of those temperatures must be kept for at least 6 months.
- Exemptions from these rules
- If the exposure to heat is for 15 minutes or less in a 1-hour period.
- All work activities performed in indoor areas where air-conditioning keeps the temperature below 80°F.
- An employee performing sedentary work indoors that involves sitting and walking only for brief periods of time is exempt even if the indoor space is 80°F+.
- Examples of NJGCA member impacts
- On average in NJ, there are about 32 days per year when the temperature is 90°+, and another 70 days per year when the temperature is 80°-90°
- Gas attendants
- Even if they are working entirely in the shade and business is slow, when the heat index reaches 90°F they must take a paid break for 15 minutes every 2 hours.
- It must be a “break”, it can’t be a switch to light duty work indoors. A station with only one employee on site working the pumps would need to close the gas pumps during that window, and any shutdown time can’t be factored into the 15-minute break, or else the employer needs to have an additional staff person working those days to cover.
- A gas station/c-store with one employee at the pumps and one in a c-store will need to either shut down the pumps or close the store during that break time, or else have an additional staff person working those days to cover.
- This also applies to a new attendant during their first week of work if the temperature is 80°-90°.
- Yet more reason that some form of self-serve will need to be legalized, a point we will make to state legislators (and to OSHA to see if we can get an accommodation).
- Technicians
- Shop owners will need to ensure that the temperature in the shop is monitored, and that techs take the required breaks.
- Techs would probably need 30-45 minutes of paid break time per day.
- Tow truck drivers
- Employer needs to ensure they are provided with 32oz of water in their truck per hour off-site, and that it remains cool enough.
- Employer would need to ensure that on 90°F+ days they take their 15-minute break inside the cabin for every 2 hours of exposure to the heat, or employer would be found in violation.
You If you have any questions or would like more details, feel free to reach out to Eric@njgca.org or 732-256-9646. You can read the full text of the rule proposal HERE.
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