NSBA continues to advocate for common sense rulemaking that is not overly broad or duplicative, supporting safe choices for Small Business, including with OSHA heat rules.
Recently, NSBA shared comments with the Occupation Health and Safety Administration’s (OSHA) Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings proposed rule (“Proposed Rule”).
While NSBA wholly supports efforts to mitigate the consequences of extreme heat in the workplace, as detailed in the submission, NSBA urged the agency to scrutinize the Proposed Rule for its overly broad in its scope and duplicative nature of other programs that are already in place to combat the potential dangers of extreme heat in the workplace.
In addition to addressing industry-related scope concerns, NSBA further urged OSHA to avoid addressing both outdoor and indoor heat in a single rulemaking, as these considerations are disparate.
Read the full letter below, and follow NSBA as we continue advocating for common sense rules and regulations affecting the Small-Business community.
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Docket No. OSHA Heat -2021-0009
Occupational Health and Safety Administration (OSHA)
To Whom It May Concern:
On behalf of the National Small Business Association (NSBA), the oldest advocacy organization for America’s small businesses, we thank you for the opportunity to submit these comments on the Occupation Health and Safety Administration’s (OSHA) Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings proposed rule (“Proposed Rule”). While NSBA wholly supports efforts to mitigate the consequences of extreme heat in the workplace, we believe the Proposed Rule is both overly broad in its scope and duplicative of other programs that are already in place to combat the potential dangers of extreme heat in the workplace.
In 2023, the Small Business Advocacy Review Panel (“Panel”) convened to discuss a potential standard for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings and transmitted its recommendations, with input from Small Entity Representatives (SERs), to Assistant Secretary for Occupational Safety and Health Douglas Parker. Among the topics addressed in the Panel’s recommendations was the scope of the potential standard. According to an OSHA fact sheet, the Proposed Rule “would apply to all employers conducting outdoor and indoor work in all general industry, construction, maritime, and agricultural sectors where OSHA has jurisdiction.” OSHA has proposed exclusions from the rule including (but not limited to) emergency response activities and indoor sedentary work activities.
NSBA is concerned that the type of industry was not taken into account in crafting exemptions from the Proposed Rule, a concern that was reflected at the time the Panel made its recommendations (p. 11). For example, in the Panel’s report, two SERs urged OSHA to exempt indoor industries that are unable to manufacture a product without heat (p. 11). In short, NSBA shares the concerns of these SERs; the Proposed Rule as written has the potential to undermine the very ability of manufacturers to make their products.
In addition to addressing the industry-related scope concerns, NSBA also urges OSHA to avoid addressing both outdoor and indoor heat in a single rulemaking, as these considerations are disparate. For example, in the Panel’s report, two construction industry SERs recommended that OSHA focus on only outdoor settings for this rulemaking (p. 12). NSBA is encouraged by this recommendation, though we note that there are already heat-related standards widely used in the construction industry.
Moreover, while NSBA appreciates that OSHA took into account emergency response activities in its proposed exclusions from the Proposed Rule, we are concerned that the exemption for indoor sedentary work activities could “result in differences in break schedules and shifts” and jeopardize the feasibility of implementation under these circumstances, as was noted in the Panel’s report (p. 11).
NSBA also urges OSHA to consider that it not only already has programs meant to mitigate the potential harms posed by the excessive heat in the workplace, but also that industry itself already has standards to which it adheres that address these concerns.
As OSHA itself has noted, the agency already directs “significant existing outreach and enforcement resources to educate employers and hold businesses accountable” for violations of applicable laws and regulations related to heat hazards in the workplace.
OSHA has also continued to conduct heat-related inspections under its National Emphasis Program – Outdoor & Indoor Heat-Related Hazards. As OSHA has highlighted, since the 2022 launch of the program, the agency has conducted over 5,000 federal heat-related inspections.
What’s more, industries including but not limited to construction already require safety plans. The industry-specific standards are also reinforced by OSHA with its Outreach Training Program; for example, a key NSBA member within the construction industry has undergone this program and touts its OSHA 30-Hour Card as part of its holistic approach and commitment to safety.
Furthermore, in the Panel’s report, one SER, a local utility in Arizona, cited just one reportable incident related to heat over the course of a decade, “despite average temperatures that range from 95 to 105 in the summer months” (p. 110). The SER attributed the success seen in mitigating these hazards to its annual heat safety training and Job Hazard Analysis, which “mirrors” what would be required by the Proposed Rule (p. 110).
In short, we urge OSHA to consider the consequences of finalizing the Proposed Rule as written, both regarding its overly broad scope and its duplicative nature. These shortfalls would disproportionately impact small businesses, with potential to hinder their productivity and unnecessarily increase operation costs.
Thank you again for this opportunity to submit these comments.
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