Heat and Smoke: New Rules for Oregon Employers

Summer in Oregon has officially arrived and, at least in the Portland Metro area, it did so not with a polite knock on the door, but with a string of 90-degree days. As the season continues to roll out, and with the likelihood of more hot days ahead, it’s important to remember that Oregon has new rules for employers related to heat exposure of employees.

HEAT RULES

On May 10, 2022, Oregon OSHA adopted new permanent rules to provide greater protections for employees when temperatures get hot. The rules went into effect on June 15, 2022.

The rules apply when an employee is working, whether indoors or outdoors, and the heat index equals or exceeds 80 degrees Fahrenheit. In those situations, the rules provide that employers must provide and implement the following:

Access to shade. There must be one or more “shade areas” that are “immediately and readily available” to employees who are outdoors. The shade area must be open to the air on at least three sides or have mechanical ventilation for cooling. Shade during meal periods must be large enough to accommodate the number of employees having the meal.

Drinking water. There must be a sufficient supply of drinking water “immediately and readily available” to employees who are outdoors at all times (at no cost). The water must be either cool (66-77 degrees Fahrenheit) or cold (35-65 degrees Fahrenheit). There must be enough water to provide each employee with up to 32 ounces per hour. All of the water does not need to be made available at the start of the shift if the employer has procedures to replenish the water throughout the shift.

High-heat practices. If the heat index is greater than or equal to 90 degrees Fahrenheit, employers must:

• Have procedures in place to rapidly identify any employee who is suspected of experiencing a heat-related illness. This can include having regular communications with employees who are working alone or having a mandatory buddy system; and
• Develop and implement a written heat-illness prevention rest break schedule. The employer may develop its own plan pursuant to the rules, adopt the plan designed by NIOSH, or utilize the simplified schedule designed by Oregon OSHA, which is available on its website.

Emergency medical plan. The employer’s emergency medical plan must address employee exposure to excessive heat and must describe the types of medical situations that employees could encounter related to excessive heat exposure.

Acclimatization plan. Employers must develop and implement, in writing, an acclimatization plan. Employers can either develop their own plan in accordance with OSHA’s rules or adopt the NIOSH acclimatization plan, which is provided as an appendix to the rules.

Heat-illness prevention plan. The employer must develop, implement, and maintain an effective heat-illness prevention plan, in writing. The plan must be made available at the worksite to employees and Oregon OSHA upon request. The plan must include at least the following:

• How employees are trained on the hazards of heat exposure and the necessary steps to prevent heat-related illnesses;
• How to recognize the symptoms of dehydration and how to respond to suspected heat-related illness in others;
• How sufficient amounts of cool water in work areas will be provided;
• How employees will be provided opportunities and encouragement to stay hydrated by drinking water;
• How employees will be provided sufficient space to rest in a shaded or cool climate-controlled area, and where heat-affected employees may cool off and recover when signs and symptoms of heat-related illnesses are recognized;
• How the employer will implement the heat-illness prevention rest break schedule; and
• How the employer will implement heat acclimatization procedures for new employees or employees returning to work after a break of seven days or more.

Supervisor and employee training. Employers must provide heat-illness prevention training to all employees, including new employees, supervisors, and non-supervisory employees in a language and vocabulary readily understood, and in a manner that facilitates employee feedback. The training must be provided annually before employees begin work that should “reasonably be anticipated” to expose them to the risk of heat illness.

Training documentation. The employer should maintain written or electronic training records that verify the employer’s compliance with supervisor and employee training so that the records can be provided to Oregon OSHA upon request. The training records must include the name or identification of each employee trained, the date(s) of the training, and the name of the person who conducted the training. The most recent annual training record for each affected employee must be maintained.

Exceptions to the new heat rules. There are some exceptions to these rules. The rules do not apply to situations involving “incidental heat exposure,” which applies when an employee is not required to perform work activities for more than 15 minutes in any 60-minute period. Additionally, the rules do not apply to exposure to heat that is generated from the work process (such as bakeries)—there are separate rules that apply to those situations. Finally, to the extent an employer’s buildings or structures have a mechanical ventilation system that keeps the heat index below 80 degrees Fahrenheit, the rules do not apply.

WILDFIRE SMOKE RULES

In addition to these new heat rules, Oregon OSHA enacted new rules seeking to address employee exposure to wildfire smoke. Those rules, which went into effect on July 1, 2022, require that employers provide employees with training, information, NIOSH-approved filtering facepiece respirators, and procedures to limit exposure to wildfire smoke in the event employees “are or will be” exposed to wildfire smoke where the U.S. Environmental Protection Agency’s Air Quality Index value is at or above a level of 101.

PENDING LEGAL CHALLENGES

Both the heat rules and wildfire smoke rules were challenged in a federal lawsuit filed on June 15, 2022, by the Oregon Manufacturers and Commerce association, the Associated Oregon Loggers Inc. trade association, and the Oregon Forest and Industries Council. In addition to seeking that the rules be blocked permanently, the lawsuit requests a temporary restraining order preventing implementation of the rules. It will take some time for the case to work its way through the judicial system, so be sure to keep an eye out for future developments.

Further information, guidance, and sample plans can be found at https://osha.oregon.gov/pages/topics/heat-stress.aspx and https://osha.oregon.gov/Pages/topics/wildfires.aspx.

Please feel free to reach out to our attorneys if you have any questions about Oregon OSHA’s new rules or your obligations as an employer. Stay cool and stay safe!