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OSHA heat hazards program raises enforcement issues


Prior to the latest move to enforce heat-related safety, the last time the U.S. Occupational Safety and Health Administration created an “emphasis” safety program – for COVID-19 — the outcome was hampered by poor implementation, according to a recent report.

Little coordination with other federal agencies and too few inspectors caused OSHA’s COVID-19 safety emphasis program to suffer, according to a scathing report released April 5 by the Department of Labor’s Office of Inspector General, which found that OSHA received 15% more complaints in 2020 than in 2019 and conducted 50% fewer inspections.

One week following the release of that report, OSHA announced another National Emphasis Program, this time aiming to conduct more heat-related workplace inspections to protect workers from injuries or fatalities.

Heat illnesses have been a focus for federal and state OSHAs in recent years. According to OSHA, incidents have doubled since the 1990s.

As part of the program, OSHA said in its April 12 announcement that it will “proactively initiate” inspections in over 70 high-risk industries in indoor and outdoor work settings when the National Weather Service has issued a heat warning or advisory for a local area.

The question for some is how OSHA will carry out this initiative given that the agency is understaffed. As of 2021, OSHA had an estimated 800 safety and compliance inspectors, a 45-year low, according to a report by the National Employment Law Project.

“OSHA’s enforcement mechanisms for heat dangers under the General Duty Clause will continue to be limited,” said Andrew Brought, Kansas City, Missouri-based partner with Spencer Fane LLP, whose practice area includes OSHA and health and safety issues.

“Heat-related inspections only account for 0.5% of all federal OSHA inspections and the agency’s emphasis program seeks only to increase this number by doubling that over the three-year period,” he said. 

OSHA “has traditionally been short staffed given the jurisdiction it oversees,” said John Ho, a labor and employment attorney and chair of Cozen O’Connor P.C.’s OSHA practice in New York. 

“Although Congress gave OSHA a $20 million increase in its 2022 fiscal-year budget, it was still much smaller than Biden’s original request. So there will continue to be issues with how much ground OSHA can actually cover given the number of compliance officers, although a sizable amount of the $20 million, nearly $7.3 million, is slated for enforcement, which should help.” 

A spokeswoman with the Department of Labor said that “OSHA will use its discretion in applying its limited human resources as necessary to achieve the (heat hazards emphasis program) goals while also balancing the need to address many other hazards under OSHA’s jurisdiction.”

Differences between fighting heat illnesses and deaths and ensuring COVID-19 safety should give OSHA a leg up, legal experts say.

“I think there are enough differences between COVID and heat illness from the agency's perspective,” said Eric Conn, Washington-based founding partner of Conn Maciel Carey LLP. “Heat illness is not new and novel, and the control measures for addressing heat illness are not new and novel, which, regardless of national emphasis program or not, made enforcement of (COVID-19 safety measures) really challenging.”

Mr. Ho said “OSHA has been enforcing heat illness through the general duty clause for a long time. This is not a new enforcement priority for OSHA so the past experience helps identify industries and businesses where this is more prevalent.”

In 2011, OSHA launched a heat illness prevention campaign to educate, “so they are hitting the ground running, so to speak, with the heat illness (national emphasis program),” Mr. Ho said.

While OSHA says the emphasis program will aid in improved compliance, a heat illness rule — which will likely come with better guidance and increased fines — is considered years away. OSHA said in its April 12 announcement that the National Emphasis Program is a way to “immediately improve enforcement and compliance efforts, while continuing long-term work to establish a heat illness prevention rule.” That process launched in September 2021, and rule-making typically takes years.



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