Top Lawyers Advise Keep Cool on OSHA Heat Rule

Now that the Biden Administration has released a proposed rule to protect workers from health risks of extreme heat, we did a review of the top-ranked OSHA law firms to see what they are advising.
To be sure, whether the proposed rule will become final under the current administration remains to be seen, and the outcome depends in large part on the results of November’s presidential election.
Morgan Lewis, among the top three firms as ranked by Chambers, has written that regardless of whether the newly proposed rule takes effect, “employers should consider reviewing and updating their heat illness prevention programs to help address heat hazards and minimize enforcement risk,” according to the firm’s July 10 blog post.
Conn Maciel Carey cited several ‘significant improvements’ in the proposed rule from previous versions, citing the increase for the initial heat trigger to “heat index of 80°F or a wet bulb globe temperature equal to the NIOSH Recommended Alert Limit” from 76°F. As well, it cited the change in the “high heat trigger” to 90°F from the previously considered 83°F.
Ogletree Deakins said one issue that OSHA will likely need to resolve is that the proposal contains no definition of what constitutes a break.
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While you might have missed the news amid the flurry around the Chevron case, the US Supreme Court rejected a challenge to OSHA regulatory power before recessing for the summer.
The court declined to hear an appeal by Allstates Refractory Contractors after a lower court tossed the Ohio industrial furnace servicing firm’s lawsuit against OSHA.
The appeal claimed that Congress ceded power to OSHA to issue workplace safety standards in violation of the Constitution’s separation of powers among the federal government’s executive, legislative and judicial branches.
Allstates was cited and fined in 2019 for safety violations related to power tools and falling objects. It sued in 2021, calling OSHA’s enforcement “abusive and arbitrary.”
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Four years after receiving OSHA citations after two workers died while cleaning a tanker truck, La Porte, Texas, Qualawash Holdings LLC was cited again in the December 2023 death of an employee under similar circumstances.
In the latest incident, OSHA found that the contractor failed to ensure that atmospheric testing was done inside the tank before allowing the 53-year-old employee to enter it. The agency cited the company for eight repeat violations.
Qualawash Holdings LLC – operating as Quala Services LLC – faces $810,703 in proposed penalties for its violations.
“Had Quala Services acted responsibly and made the safety reforms as required in 2020, another employee would not have lost their life,” OSHA Houston Area Director Larissa Ipsen said in a statement.
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OSHA’s Dallas office (Region Six) has renewed its regional emphasis programs for three industries Bureau of Labor Statistics injury data were higher than the national average for private industry.
The two renewed programs focus on poultry processing facilities and fabricated metal manufacturers, while a revised program is for the healthcare industry,
The three programs went into effect July 1 and are for all relevant worksites in Arkansas, Louisiana, Oklahoma and Texas, as well as worksites in New Mexico that are under federal OSHA jurisdiction.
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