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Jul 09, 2021

ALERT: Oregon heat illness rule applies now

Safety and Health 

On July 8, 2021, the Oregon Occupational Safety and Health Administration (Oregon OSHA) issued a temporary rule intended to prevent heat illness in workers on hot-weather days. The new Oregon heat illness prevention rule applies to all Oregon employers, including employers in the agriculture industry. Among other requirements, the new rule may require additional paid rest periods in certain high heat situations. Oregon OSHA was already working on a permanent rule on heat illness prevention to be released later this year, but quickly issued this temporary rule in response to the recent extreme heat wave. Most parts of the rule took effect immediately upon publication. Meanwhile, Washington’s Department of Labor and Industries (L&I) released a new Washington heat illness prevention rule July 9, 2021, effective July 13, 2021.

Here are the details on Oregon's rule:

Covered employers. The requirements of the rule are the same for all types of employers, without exception. The text of the rule is split into two parts, one for general industry (all workplaces except for agriculture) and one for agriculture. However, that split simply reflects the fact that rules for general industry and rules of agriculture exist in two different places in the Oregon rulebooks. Sometimes, the rules for the agriculture industry (or other industries) are different from the general rules; that isn’t the case here.

Applicability. The requirements of the rule apply whenever an employee performs any work activities and the heat index reaches or exceeds a particular threshold.

Heat index. Many of the rule’s requirements are keyed to the “heat index” number (also known as “apparent temperature,” and which the rule sometimes refers to as “ambient heat index”), measured in degrees Fahrenheit (°F). The heat index is what the temperature feels like to the human body when relative humidity is combined with the air temperature. Some of the rule’s requirements kick in at 80°F; others kick in at 90°F. To know when certain parts of the rule kick in, you’ll have to monitor the heat index in both outdoor and indoor workspaces; essentially, anywhere workers are present for more than 15 minutes in any 60-minute period (see “incidental exposure” exception below).

According to the rule, you can determine the heat index using the same equations used by the National Weather Service (NWS), by using the NWS’s online calculator (which requires you to know both the air temperature and either the relative humidity or dew point) or by using the OSHA-NIOSH Heat Safety Tool App. The app may be the easier of the two methods to determine the outdoor heat index for your relative area. Finding the current outdoor temperature and humidity to plug into the online heat index calculator is straightforward – just search the forecast for your zip code or city on a site such as Weather.gov. To determine the indoor heat index, use the same humidity figure from your local forecast plus your own indoor temperature measurement. Or, you may invest in the appropriate technology, such as wet bulb thermometers, to determine the indoor heat index.

Access to shade.  When the heat index in the work area equals or exceeds 80°F, you must provide workers one or more shade areas. Shade isn’t adequate if heat in the shaded area “defeats the purpose of shade, which is to allow the body to cool” (e.g., a car sitting in the sun). You can provide shade by natural or artificial means, as long as each shaded area:

  • Is either open to the air or provides mechanical ventilation for cooling;
     
  • Has enough space to accommodate at least the number of employees on recovery, rest, or meal periods, such that they can sit in a normal posture fully in the shade; and
     
  • Is located as close as practical to working areas.

You don’t have to provide shade during times when it isn’t feasible (for example, during high winds or when an employee is walking through range land). If you claim that it isn’t feasible for you to provide access to shaded areas, you must be able to demonstrate that it’s functionally impossible to comply or that doing so would prevent completion of the work. Even in those situations, you must still identify and implement alternative cooling measures to provide equivalent protection (such as cooling garments, misting machines, or portable air-conditioning devices).

Access to drinking water. When the heat index in the work area equals or exceeds 80°F, you must provide workers with an adequate drinking water supply that is:

  • Cool (66°F - 77°F) or cold (35ºF - 65°F;
     
  • At no cost to workers;
     
  • Accessible to workers at all times; and
     
  • Enough to enable each worker to consume at least 32 ounces per hour.

Workers must have ample opportunities to drink the water. You don’t have to provide all the required water at the beginning of each shift, as long as you replenish water consumed throughout the shift. You may substitute some of the water with non-caffeinated electrolyte-replenishing beverages (such as sports drinks) – still at no cost to workers – but such drinks cannot completely replace the required water.

High heat practices. When the heat index exceeds 90°F in a work area, you must implement all the following practices in addition to those described above:

  • Ensure the maintenance of effective communication by voice, observation, or electronic means (e.g., cell phone, radio), so workers can contact a supervisor when necessary. You can only use a cell phone for this purpose if reception in the area is reliable; if not, you have to use a different method.
     
  • Ensure the observation of workers for alertness and signs and symptoms of heat illness, and to determine whether medical attention is necessary by one of the following: (1) regular communication with employees working alone; (2) creation of a mandatory buddy system; or (3) other “equally effective means of observation or communication.”
     
  • Equip one or more workers on each worksite to call for emergency medical services, and allow other employees to call emergency services when the designee(s) isn’t available.
     
  • Ensure each worker takes a minimum 10-minute preventative cool-down rest period in the shade at least every 2 hours, regardless of the overall length of the shift. You may run the 10-minute preventative cool-down rest period at the same time as other meal or rest periods required by policy or law (i.e., at the same time as your 10-minute paid rest periods or your 30-minute unpaid meal periods), if they happen to coincide. However, if the required 10-minute preventative cool-down rest periods don’t coincide with those other rest or meal periods, you must treat them as work assignments and pay workers for them.
     
  • You must development and implement effective acclimatization practices. “Acclimatization” is the temporary adaptation of the body to different climates. In this context, acclimatization practices include those designed to gradually expose workers to work in higher temperatures.

Emergency Medical Plan. You must develop and implement an emergency medical plan when the heat index exceeds 90°F. The plan must comply with preexisting rules (both for non-agricultural and agricultural employers), and must include and address the following:

  • How supervisors will respond to signs and symptoms of possible heat illness, including the provision of first aid measures and emergency medical services;
     
  • How and when to contact emergency medical services and, if necessary or as instructed by medical professionals, how to transport employees to a place where they can be reached by emergency medical providers; and
     
  • How to provide clear and precise directions to the worksite to first responders so they can quickly navigate to the affected worker.

Exceptions to the rule. The rule contains exceptions for a few situations.

  • Exception for incidental exposure. If a worker isn’t exposed to the applicable heat index number for more than 15 minutes in any 60-minute period, the requirements that correspond to the applicable index number won’t apply to the situation. For example, if a worker is exposed to a heat index of or above 80°F for just 15 minutes each hour when they go into a particular work area that is hotter than other areas, and then they return to another area that remains below 80°F for the rest of the hour, the requirements of the rule keyed to the 80°F wouldn’t apply.
     
  • Exception for transportation of employees. The requirements of the rule don’t apply to the transportation of workers inside vehicles when they aren’t otherwise performing work. Even if workers are being paid for transportation time, but they aren’t otherwise performing work, the rule wouldn’t apply. However, the rule would apply to drivers, and anyone else performing work related to the transportation of other workers, who are exposed to the rule’s threshold heat indices.
     
  • Exception for work processes (non-agriculture employers only). If a worker’s exposure to heat at or above the rule’s thresholds is a result of heat “only from the work process – such as occurs in foundries,” the rule doesn’t apply. For example, if a worker is in an area with a heat index at or above the rule’s thresholds, and that heat index is solely the result of the work process itself – likely due to the machinery or equipment involved – the rule wouldn’t apply. However, if the threshold heat index is caused by a combination of the work process and the weather conditions, the rule would apply. Keep in mind that if your work process is the sole cause of the high levels of heat experienced by workers, you must still take measures to control conditions or effects on workers to prevent heat illness, as required by existing general health and safety rules.

Training. No later than August 1, 2021, you must train all workers whose work may expose them to a heat index of 80°F or more, in a language readily understood by the workers. You must document the training and cover the following topics:

  • The environmental and personal risk factors for heat illness, including additional risk factors caused by exertion, clothing, and personal protective equipment;
     
  • The procedures for complying with this rule, including your responsibility to provide water, provide daily heat index information, shade, cool-down rest periods, how to report symptoms of heat-related illness, access to first aid, and workers’ ability to exercise their rights under this rule without fear of retaliation;
     
  • The concept, importance, and methods of acclimatization;
     
  • The effects of non-occupational factors (such as medications, alcohol, and obesity) on tolerance to occupational heat stress;
     
  • The different types, and the common signs and symptoms, of heat-related illness (described in detail in the rule).

Retaliation and penalties. Workers must be told (during training) of their rights under this rule. The rule explicitly prohibits you from retaliating against workers for exercising those rights. Oregon OSHA may issue citations – including fines – for violations of the rule. The rule is effective immediately, and Oregon OSHA has said it will soon begin inspections based on complaints about noncompliance with this particular rule.

Tips: If the type of work your workers perform is implicated by the rule (i.e., it exposes them to high heat indices), you will likely have to make changes to some of your procedures immediately. Employers were already required to implement preventative measures in certain high-heat work situations, so you may already be doing some of what’s required by the rule. Read the rule carefully, since the description above isn’t exhaustive. As a practical matter, if your workforce is entirely within an indoor, air-conditioned space, you may not have to enforce the rule very often.

You may have to monitor the heat index throughout a shift. The rule doesn’t specify how often you need to calculate the heat index (or measure the indoor temperature) during a shift in order to determine whether you’ve crossed the threshold into 80°F (for regular protective measures) or 90°F (for protection against high heat), but the new rules apply as soon as those levels are reached. If you’re pretty certain you’ll be in 80°F or 90°F territory partway through a shift, it may be simpler to apply appropriate protections at the beginning of the shift rather than measuring as you go along.

Although the rule is temporary and set to expire on January 3, 2022, Oregon OSHA is likely to replace it with a similar permanent rule, so the changes you’re required to make now are probably here to stay. If you have questions, contact your Vigilant safety professional.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.

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