OSHA has released the long-anticipated proposed rule with the goal of protecting millions of workers from the health risks of extreme heat. If finalized, the proposed rule would help protect approximately 36 million workers in indoor and outdoor work settings and arguably substantially reduce heat injuries, illnesses and deaths in the workplace.
The proposed rule would require employers to develop an injury and illness prevention plan to control heat hazards in workplaces affected by excessive heat. Among other things, the plan would require employers to evaluate heat risks and – when heat increases risks to workers – implement requirements for drinking water, rest breaks and control of indoor heat. It would also require a plan to protect new or returning workers unaccustomed to working in high heat conditions.
Employers would also be required to provide training, have procedures to respond if a worker is experiencing signs and symptoms of a heat-related illness, and take immediate action to help a worker experiencing signs and symptoms of a heat emergency.
If adopted, the Rule will become the first nationwide standard for addressing the hazards of excessive heat in the workplace.The rule comes as the U.S. Supreme Court has been scrutinizing federal agencies’ rulemaking and Congress’s delegation of authority to federal agencies.Some major employment law attorneys are predicting the new SCOTUS opinion may cause OSHA some headaches.
In a landmark case decided in June 2024, Loper Bright Enterprises v. Raimondo, a group of commercial fishermen, challenged a regulation by the National Marine Fisheries Service (NMFS) that required them to fund on-board observers in the Atlantic herring fishery. This program came with a hefty price tag of $710 per day for the fishermen.
The crux of the issue was whether the NMFS had the legal authority to impose this financial burden. The fishermen argued that the law governing fishery management, the Magnuson-Stevens Fishery Conservation and Management Act (MSFCA), didn’t grant the NMFS such power. They also felt the agency didn’t follow proper procedures when setting up the rule.
The case hinged on a legal principle called Chevron deference. Established in a previous case, Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, Chevron deference instructed courts to defer to an agency’s interpretation of a law it enforces, especially if the law was ambiguous.
Loper Bright Enterprises asked the Supreme Court to not only decide on the specific regulation, but also to reconsider Chevron deference altogether. The Supreme Court agreed to hear the case specifically on the question of Chevron deference.
In a 6-2 decision, the Supreme Court sided with the fishermen and threw out Chevron deference. The Court ruled that courts must make their own independent judgment about whether an agency is acting within the legal limits of its authority. They cannot simply accept an agency’s interpretation of the law, even if the law is unclear.
This decision was a major shift in the balance of power between courts and regulatory agencies. It gives courts more authority to review agency actions and ensure they comply with the law.
Moreover, on July 2, 2024, Justice Clarence Thomas dissented from the Court’s decision not to take a case, Allstates Refractory Contractors, LLC v. Su, which raised the issue of whether Congress’s delegation of authority to OSHA in the Occupational Safety and Health (OSH) Act to write “reasonably necessary or appropriate” workplace safety standards was unconstitutional. In his dissenting opinion, Justice Thomas argued the Court should reconsider its standard of allowing congressional delegation when a statute creating an agency contains an “intelligible principle” that guides the agency’s exercise of authority. This principle “does not adequately reinforce the Constitution’s allocation of legislative power” in Congress, Thomas argued.
“The [OSH Act] may be the broadest delegation of power to an administrative agency found in the United States Code,” Justice Thomas wrote. “If this far-reaching grant of authority does not impermissibly confer legislative power on an agency, it is hard to imagine what would.”
At least five justices have already indicated an interest in reconsidering Congress’s delegation to federal agencies, including Justice Neil Gorsuch, who separately indicated he would have granted the petition for a writ of certiorari in Allstates
In the interim, OSHA continues to direct significant existing outreach and enforcement resources to educate employers and workers and hold businesses accountable for violations of the Occupational Safety and Health Act’s general duty clause, 29 U.S.C. § 654(a)(1) and other applicable regulations. Record-breaking temperatures across the nation have increased the risks people face on-the-job, especially in summer months. Every year, dozens of workers die and thousands more suffer illnesses related to hazardous heat exposure that, sadly, are most often preventable.
The agency continues to conduct heat-related inspections under its National Emphasis Program – Outdoor and Indoor Heat-Related Hazards, launched in 2022. The program inspects workplaces with the highest exposures to heat-related hazards proactively to prevent workers from suffering injury, illness or death needlessly. Since the launch, OSHA has conducted more than 5,000 federal heat-related inspections.
In addition, the agency is prioritizing programmed inspections in agricultural industries that employ temporary, nonimmigrant H-2A workers for seasonal labor. These workers face unique vulnerabilities, including potential language barriers, less control over their living and working conditions, and possible lack of acclimatization, and are at high risk of hazardous heat exposure.