Employment Law Update

In recent years, including the summer of 2024, Maryland experienced record-setting heat. Rising and sustained heat increases the vulnerability of workers to heat-related illnesses and injury. The recent heat-related death of a local public works employee underscores the dangers of workplace heat exposure. In response to growing concerns about heat-related workplace illness, both the federal Occupational Safety and Health Administration (“OSHA”) and the Maryland Department of Labor recently issued workplace heat standards. 

The Final Maryland Heat Stress Standards (the “Maryland Standard”) became effective on September 30, 2024. Available here.  On August 29, 2024, OSHA published its proposed regulation, “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings,” (the “OSHA Proposed Rule”) in the Federal Register. Available here.

The comment period for the proposed OSHA Proposed Rule remains open until December 30, 2024. Accordingly, the OSHA Proposed Rule may be modified before it becomes final or, if it does become final, it may be challenged in court. Given the Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo, 603 U.S. ___, 144 S.Ct. 2244 (2024), overruling the agency deference established in Chevron USA v. National Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778 (1984), the likelihood of a successful legal challenge has increased. The Congressional Review Act also may provide an opportunity for a new federal administration in January 2025 to overturn a final rule.  

According to OSHA, while the OSHA Proposed Rule is pending, it will continue to conduct heat-related inspections under the National Emphasis Program- Outdoor and Heat-Related Hazards, which it implemented in 2022 pursuant to the Occupational Safety and Health Act’s general duty clause. 

The Final Maryland Standard

The Maryland Standard is less onerous than the OSHA Proposed Rule but warrants considered planning by covered employers. It applies to employers with employees whose indoor or outdoor employment activities expose them to a heat index at 80 degrees Fahrenheit or greater.  Exceptions include emergency or essential services that protect life or property, incidental exposures of 15 minutes or less and work in buildings, structures or vehicles with a mechanical ventilation system or fan that maintains the heat index at below 80 degrees. 

Covered employers are required to monitor the heat index in work areas throughout shifts. Monitoring must be performed through either direct measurement of heat and humidity, reliance on the local weather data reported by the National Weather Service or other recognized source, or by use of the National Institute for Occupational Safety and Health’s (“NIOSH”) Heat Safety Tool application.

Additionally, and as further addressed below, covered employers must develop a written heat-related illness prevention and management plan, provide for an acclimatization period of up to 14 days for heat exposed employees, provide shade access, and accessible drinking water, implement high-heat procedures for when work areas reach or exceed 90 degrees Fahrenheit, and implement an emergency response plan and provide heat stress training for supervisors and employees. 

Requirements of the Heat-Related Illness Prevention and Management Plan

The written heat-related illness prevention and management plan must be available and accessible to employees and, upon request, the Maryland Occupational Safety and Health Program (“MOSH”). It must include plans for: 

1. Providing sufficient amounts of drinking water;
2. Providing sufficient opportunities and encouragement to drink water;
3. Recognizing the symptoms of heat-related illness; 
4. Responding to suspected heat-related illness;
5. Providing employees with sufficient time and space to rest in shaded or cool, climate-controlled ar  eas to cool down;  
6. Implementation of rest break schedules as necessary;
7. Considering environmental conditions, workload, required clothing, personal protective equipment,  and alternative cooling and control measures when determining rest break schedules;
8. Encouraging employees to take rest breaks to prevent heat-related illness;
9. Training employees on the hazards of heat exposure and necessary steps to prevent heat-related  illness;
10. Using and maintaining alternative cooling and control measures to manage heat;
11. Heat acclimatization procedures;
12. High-heat procedures; and
13. Emergency response. 

High Heat Procedures

Employers must develop a written procedure, in a language and manner that employees can understand, to address conditions when the heat index reaches 90 degrees Fahrenheit or greater. The procedure must include a work and rest schedule that is adjusted for environmental conditions, workload, and the impact of clothing and personal protective equipment.  Unless the Employer can demonstrate effective heat management through alternative cooling and control measures, it must include work and rest periods for heat either in accordance with NIOSH recommendations or provide a minimum rest period of 10 minutes for every two hours when the heat index is between 90 and 100 degrees and a minimum of 15 minutes per hour worked when the heat index reaches 100 degrees.  

Rest periods must be provided in the shade and an employer may not discourage employees from taking rest periods to avoid heat-related illness. Rest periods may coincide with scheduled rest or meal breaks. 

Alternative cooling and rest measures must be readily available and accessible to employees at all times, they must be documented in writing and may not supersede other requirements of the Maryland Standard. 

During periods of high heat, employers must monitor exposed employees by phone or radio, a buddy system or “other effective means of observation.” 

Shade Access, Drinking Water and Emergency Response

Covered employers must provide a shaded area as close to the work area as practicable.  The shaded areas should be outside, open and exposed to air on three sides, prevent a heat source from reducing effectiveness, be of a sufficient size for the number of employees and configured to permit them to sit. Accommodation also must be made for removal and storage of personal protective equipment.  If providing an outdoor shade area is demonstrably infeasible or unsafe, an employer may provide alternative measures that are equivalent to shade.  An employer also may provide an indoor area cooled by a mechanical ventilation system as long as it meets the size and other requirements for outdoor shade. 

Employers must provide at least 32 ounces of free drinking water per hour to exposed employees as close to the work area as practicable.  The water should be available at all times while the work is being performed. 

The emergency response plan must provide for an effective and accessible means of communication at the worksite at all times as well as procedures for responding to signs and symptoms of heat-related illness, contacting emergency services and transporting employees to an area accessible to emergency services. 

Acclimatization

Newly hired or employees who have been absent seven or more days must be acclimatized to heat for up to fourteen days. Covered employers also must maintain a written acclimatization schedule.  That acclimatization schedule should include one of the following: 1) a schedule with a gradual exposure increase of not more than twenty percent each time over a period of five to fourteen days; 2) compliance with NIOSH’s recommendations for acclimatization; or 3) a combination of gradual introduction and alternative cooling and control measures.  

Training

The Maryland Standard requires employee and supervisor heat training prior to exposure to heat, annually prior to exposure and immediately following any suspected workplace illness or injury related to heat.   

Training must include information on the work, environmental and personal conditions that affect heat related illness. It also must address the importance of acclimatization, water consumption and rest breaks, acclimatization methods, types and signs of heat-related illness, appropriate first aid and emergency response measures, and the employer’s procedures for reporting signs and symptoms of heat-related illness and otherwise complying with the Maryland Standard. 

Training must be provided in a language and method understandable to employees and include the dates of sessions, names of trainees as well as a summary of the training provided. Documentation must be maintained for one year and made available to MOSH upon request. 

The OSHA Proposed Rule

While the OSHA Proposed Rule is similar in many ways to the Maryland Standard, it is more extensive and imposes specific directives that likely will make it vulnerable to legal challenge. Similar to the Maryland Standard, the OSHA Proposed Rule includes heat triggers of 80- and 90- degrees Fahrenheit and requires a heat illness prevention plan, acclimatization procedure, training, rest breaks, water availability and recordkeeping. 

Under the OSHA Proposed Rule, employers must develop a work site heat injury and illness prevention plan (“HIIPP”) to include site-specific information. The HIIPP must be written if the employer has ten or more employees and must include non-managerial employees and their representatives in its development, reviews and updates.  The OSHA Proposed Rule also mandates the designation of at least one safety coordinator who has the authority to ensure compliance with all aspects of the HIIPP.

If the employer has employees who wear vapor-permeable clothing, the employer must evaluate the stress hazards of such clothing and implement policies and procedures based upon “reputable sources” to protect employees wearing such clothing. 

The OSHA Proposed Rule may be revised in response to public comments and a final Rule may be vulnerable to legal claims of administrative overreach or a change in administration in January 2025.

Conclusion

While the ultimate fate of the OSHA Proposed Rule is unclear, Maryland employers should develop or update workplace heat policies and procedures in accordance with the Maryland Standard and consider potential outcomes under the OSHA Proposed Rule.

Melissa Menkel McGuire
410-576-4201 • mmcguire@gfrlaw.com