OSHA Heat Illness Rulemaking – Hearing Recap

OSHA held its public rulemaking hearing on the proposed Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings standard from June 16 through July 2, 2025. Below is a summary of the hearing and a brief discussion of what happens next. Finalizing the daily hearing transcripts is underway, with transcripts being uploaded to the public docket for this rulemaking.

Who Spoke?

Members of industry, unions, academia, professional groups, and the public were all well represented at the hearing. OSHA had approximately 325 individuals register to testify and ultimately received testimony from organizations such as AFL-CIO, U.S. Chamber of Commerce, Small Business Administration Office of Advocacy, National Safety Council, American Society of Safety Professionals, United Auto Workers, American Chemistry Council, American Fuel and Petrochemical Manufacturers, United Steelworkers, Edison Electric Institute, state/local representatives, members of the public, etc. Here are links to a full list of those who registered as well as the final hearing schedule.

The OSHA panel was a mix of representatives from the Agency’s Directorate of Standards and Guidance and members of DOL’s Office of the Solicitor. Each day, an Administrative Law Judge presided over the hearing.

What Did We Say and What Did OSHA Ask?

We testified three times on behalf of our Employers Heat Illness Prevention Rulemaking Coalition. First, an employer of one of our trade association Coalition members, International Liquid Terminals Association, and CMC (Beeta Lashkari) provided 40 minutes of testimony on June 17^th. Second, our Coalition member, the National Roofing Contractors Association, provided 10 minutes of testimony on June 18^th. And third, our Coalition member, the Retail Industry Leaders Association, provided 10 minutes of testimony on June 24^th. Beeta fielded questions along with our Coalition members during all three sessions.

Our Coalition members each did a fantastic job emphasizing our key positions and adding credibility to our written comments. As planned, our testimony focused on how:

• Any Final Rule Should Provide Maximum Flexibility for Employers and be Performance-Based
• Certain Provisions in the Proposed Rule are Technically or Economically Infeasible and OSHA’s Time and Cost Estimates are Too Low
• Any Final Standard Should Exclude Indoor Work Settings
• Any Heat Triggers Should be Higher, Include an Option for Ambient Temperature, and Account for Local Environmental Conditions
• OSHA Should Add Flexibility to Any Requirements for Outdoor and Indoor Heat Monitoring
• Any Final Standard Should Provide Flexible Acclimatization Requirements and Allow for Self-Managed Acclimatization
• OSHA Should Add Flexibility to Any HIIPP Requirement and Reasonably Limit Any HIIPP Review Cycles
• Mandatory Rest Break Requirements are Unnecessary Given That Employees Can Already Take Rest Breaks on an As-Needed Basis
• The Proposed Requirements for Engineering Controls for Indoor Work Settings are Infeasible
• OSHA Should Not Include the Proposed Recordkeeping Requirements in Any Final Rule

Linked here is a copy of the 20-minute testimony we submitted to the docket for your reference.

Of note, OSHA representatives and representatives of the Solicitor’s Office referenced our Coalition’s NPRM comments extensively. Indeed, they asked numerous questions, including ones entered into the record for potential post-hearing comments. Here is a non-exhaustive list of questions that we were asked:

1. General:
   • How can/should OSHA construct a performance-oriented standard?
   • What limited elements of a standard should be required?
   • You suggest looking at the Nevada standard, including its requirement for a JHA, as an example of a performance-based approach. How can OSHA ensure that employers do not pencil-whip their JHAs?
2. Programs:
   • How long did it take Coalition members to develop their heat illness prevention programs?
   • Please submit an example heat illness prevention program.
3. Triggers/Monitoring:
   • Please share your thoughts on a reasonable/appropriate frequency for heat monitoring. What frequency do Coalition members currently use?
   • Please share any data you have on heat-related illnesses that occurred during National Weather Service alerts, advisories, etc.
   • Please share how Coalition members use geography in their programs to craft heat triggers.
   • Do you currently monitor for temperature for other reasons (e.g., for planning/scheduling jobs, in JHAs, etc.)?
   • How do Coalition members currently account for radiant heat?
   • What facilities have temperature sensitive environments and what are Coalition members doing to cool these facilities?
4. Rest Breaks:
   • How frequently do employees take as-needed rest breaks, and how long do they tend to last?
   • What are your Coalition members currently doing to work around some of the concerns around rest breaks (e.g., safe access to rest break areas)?
   • Are anti-retaliation provisions required to ensure employees take rest breaks as-needed?
5. Observation:
   • What suggestions do you have for making the supervisor observation requirements in the proposed rule more feasible?
6. Industry-Specific:
   • How have your members utilized wearable technology?
   • How are Coalition members currently addressing lone workers?
   • Can shade be provided on the rooftop? If it is infeasible, how are shade, rest, and water being provided?
   • What kinds of advanced technology are those in the retail industry using for heat monitoring?

Key Takeaways

The key takeaway is that there appears to be a tension between whether any final standard should be more prescriptive or more performance-oriented. On one side, the overwhelming sentiment from industry speakers is that the rule, as proposed, is too inflexible and prescriptive, and inappropriately one-size-fits-all. On the other, the overall sentiment from union speakers is that the proposed rule does not go far enough, and should include additional elements, such as: lower heat triggers; mandatory rest breaks at the initial heat trigger; mandatory WBGT use; a narrower short term duration exemption from 15 minutes to 5 minutes within any 60 minute period; and water temperature requirements.

While difficult to predict, OSHA did ask industry, including our Coalition, numerous questions about how it can craft a more performance-oriented standard, suggesting that OSHA is at least open to, and perhaps considering, this approach for the future of the rulemaking.

Next Steps

Given that OSHA seems at least open to promulgating a more performance-oriented, flexible standard, that makes our advocacy all the more important. At this stage, the record is open to those who registered for the hearing to submit post-hearing comments and legal briefs until September 30, 2025. We are currently reviewing the numerous questions that were asked of us during the hearing, as well as other topics, to develop a strategy for drafting post-hearing comments.

After September 30, two things could happen. If OSHA does decide to make significant changes to the proposed rule, which is what we expect, it is possible that OSHA will issue a new Notice of Proposed Rulemaking. That would be a protective step by OSHA, to set itself up for success in a possible legal challenge by the union or activist groups who may say the Final Rule is too different from the proposed rule to have given fair notice to stakeholders to be able to adequately comment. More likely though, the rulemaking record will close, and a proposed final rule will be sent to OMB/OIRA for review. During that stage, the public can participate in 12866 Stakeholder Meetings to provide final feedback about the potential economic impacts of the rule. Whether that process will happen within the next 3.5 years is difficult to predict.

There is still a lot of runway associated with this rulemaking, especially if OSHA issues another Notice of Proposed Rulemaking.

[View source.]