A second Donald Trump presidency will likely spell the death of OSHA’s recently published heat safety rule, but it won’t necessarily mean no standard will come to pass, experts told Construction Dive.
The agency published the proposed rule and began accepting public comments this summer. That time period will close on Dec. 30. Then it would take several months for OSHA to review all of the input, finalize the rule and put it into effect, Phillip Russell, OSHA and employment lawyer, litigator and advisor for Washington, D.C.-based firm Ogletree Deakins, told Construction Dive.
“But obviously January 20th will come, and I don’t think that happens,” Russell said.
Ashley Brightwell, partner in Atlanta-based Alston & Bird’s labor and employment group, called the finalization of the rule “highly unlikely” before Biden leaves office. The standard would also face congressional and legal challenges, and the Trump administration could abandon the rulemaking process altogether, she said.
The 1,000-page rule requires a Heat Injury and Illness Prevention Plan that employers would need to put into effect for a heat trigger — when temperatures reach 80 degrees F or a wet bulb globe temperature equal to the NIOSH Recommended Alert Limit. Employers would have more requirements to protect workers for a high-heat trigger — when temperatures reach 90 degrees or hotter.
HIIPP mandates would include worker training, access to water and shade, an assigned heat safety coordinator and clear communication of the plan in every language spoken on the job.
Critics say the specifics of the standard would make it overly burdensome and challenging to implement.
“I think this one was too detailed, too problematic for compliance, I think it set employers up for failure,” Russell said.
Nonetheless, the lack of a new rule doesn’t mean zero heat safety requirements. OSHA’s National Emphasis Program — which reinforces the credo of water, rest and shade and ups inspections around heat — remains on the books until April, Brightwell said. Additionally, the general duties clause mandates employers abate and respond to hazards, so, broadly speaking, contractors would need to ensure workers are protected in extreme conditions, such as high heat.
Brightwell predicted fewer rulemaking measures under Trump’s second term. But Russell said the president has more of a populist backing than in his first term, so firms shouldn’t expect there to be no rules.
“I’m telling clients don’t count on there being no standard, but I do think it’s reasonable to assume this standard is DOA,” he said.
