The Occupational Safety and Health Administration yesterday issued an Advance Notice of Proposed Rulemaking (ANPRM) to begin the process of collecting information and public input on an OSHA heat standard. The document includes 114 questions for stakeholders and will be open for 60 days — until December 27.
OSHA noted in its press release that the Heat ANPRM is part of the Administration’s initiative to Protect Workers and Communities from Extreme Heat. The ANPRM is also part of a comprehensive OSHA initiative to address indoor and outdoor heat hazards. On September 1, OSHA launched a nationwide enforcement initiative on heat-related to “prevent and protect employees from serious heat-related illnesses and deaths while working in hazardous hot indoor or outdoor environments” and is working on a National Emphasis Program.
Work on the standard was initially announced in the 2021 Spring Regulatory Agenda, issued June 11, 2021, which announced that OSHA would conduct a Request for Information (RFI) to gather information for a heat standard. On September 20, President Biden announced the Administration’s comprehensive heat initiative and the OSHA RFI was transformed into an ANPRM. (There is basically no difference between an RFI and an ANPRM. Both are designed to collect information that will be used to develop a proposal.)
OSHA lays out the problem well:
According to the Bureau of Labor Statistics (BLS) Census of Fatal Occupational Injuries, exposure to excessive environmental heat stress has killed 907 U.S. workers from 1992-2019, with an average of 32 fatalities per year during that time period (BLS, September 10, 2021a). In 2019, there were 43 work-related deaths due to environmental heat exposure (BLS, September 1, 2021). A recent analysis of BLS data by National Public Radio and Columbia Journalism Investigations found that the three-year average of heat-related fatalities among U.S. workers has doubled since the early 1990s
But despite those troubling number, OSHA’s ANPRM also notes that despite the high and growing number of heat-related workplace illnesses and fatalities, the extent of heat-related illness is underreported for several reasons:
- Heat related illness often not recognized by physicians and the criteria for defining a heat-related death or illness may vary by state, and among physicians, medical examiners, and coroners.
- The effect of heat on a persons cognitive abilities and judgement can result in significant heat-related occupational injuries that are not reported as heat-related.
- Employers self-report injuries and illnesses to OSHA and the Bureau of Labor Statistics, and they tend to under-report. In some high-heat industries, like agriculture, employers with 10 or fewer employees are excluded from reporting requirements. In addition, Employees often fear retaliation for reporting or may not realize an illness or injury is heat-related.
- Heat can have delayed, long-term effects on employees that may not be traced back to working conditions.
A Note of Hope and a Note of Caution
From beginning to end, the development of a complex OSHA standard can take decades. OSHA’s silica and beryllium standard took almost 20 year to finalize. The requirements of the Occupational Safety and Health Act, court decisions over the past 50 years, regulatory Executive Orders, additional laws adding regulatory requirements — and politics — all conspire to slow down OSHA standards. And that’s just in Democratic administrations. Republican administrations generally stop all significant work on OSHA standards, adding 4 or 8 years to an already glacial process.
It is hard to imagine that the founding fathers of OSHA intended an OSHA standard to take decades to finalize.
In other words, if we are going to see a final OSHA heat standard before my infant grandson gets his first job, something needs to change. It always helps to have strong White House backing and the fact that President Biden has made a heat standard a top Administration priority should speed up the process somewhat.
But in order to make OSHA’s regulatory process significantly faster, more fundamental change is needed.
- Resources: OSHA is a tiny agency and its entire annual standards budget is only $18 million in FY 2020. Ten year ago, in FY 2011, the standards budget was just over $20 million. Not only was it not increased after that, but the Trump administration cut the standards budget by 10%. OSHA will need a significant increase to speed up the process not only for the heat standard, but for other standards that OSHA is working on like COVID-19, infectious diseases, workplace violence and process safety management. Not only does the tiny budget lengthen the time to issue a final standard, but it also limits OSHA’s ability to work on more than a small handful of important standards simultaneously. During the Obama Administration, for example, we rejected a petition from a number of unions and advocacy groups to issue a heat standard — not because it wasn’t an important issue, but because there was no room in the regulatory pipeline to start work on a heat standard.
- Regulatory Process: Much has been said about how broken OSHA’s regulatory process is. The problem is particularly acute in the area of health standards. In its entire 50 year history, OSHA has issued comprehensive health standards for only 18 individual chemicals and one separate rule for 14 carcinogens. You can get a rough idea of all the hurdles OSHA has to leap by checking out this flowchart on the OSHA website. But that doesn’t have to be the end of the story. There are things that OSHA can do — with the help and cooperation of the Office of Information and Regulatory Affairs, through with all regulations flow. For example, OSHA conducts an enormous amount of economic, feasibility and other regulatory analysis even before a proposal issued issued. Then comments are collected, hearings are held, more written comments are collected and OSHA re-conducts and adds to that analysis. One idea would be for OSHA to conduct less analysis prior to the proposal and do the bulk of the analysis after public input is collected. In other words, a proposal “lite.” There are undoubtedly many creative persons out there with better ideas, but something needs to be done.
- Legal Requirements: The requirements of Occupational Safety and Health Act, the Small Business Regulatory Enforcement Fairness Act (SBREFA), which gives small businesses an early bite of the regulatory apple, and other laws, will need to be eliminated or changed if the regulatory process is to be accelerated. Republicans have focused for the last several decades or “regulatory relief” and “cutting red tape” — making it even harder to issue regulatory protections. Politicians who believe that that government has a role in protecting workers (as well as consumers and the environment) need to push that dialogue the other direction — toward passing legislation that will significantly speed up the regulatory process, while still allowing for meaningful analysis and public input. It is hard to imagine that the founding fathers of OSHA intended an OSHA standard to take decades to finalize. And, in fact, in the early years of OSHA, standards could be issued in less than 5 years.
So, I am encouraged that OSHA has embarked on this important project and that the agency has the strong personal and public backing of the President of the United States. But it will take more than good intentions and the bully pulpit to accelerate OSHA’s regulatory process. For workers to receive the protections that were originally intended when the Occupational Safety and Health Act was passed, much more creative thinking and political will are needed.