Prior to the recent move to maintain heat-related safety, the last time the U.S. Department of Homeland Security created a safety program for “emphasis” – for COVID-19 – was hampered by poor implementation, according to a recent report.
Little coordination with other federal agencies and too few inspectors caused OSHA’s covid-19 security program to suffer, according to a scathing report released on April 5 by the Department of Labor’s Office of Inspector General, which found that OSHA received 15% more complaints. 2020 than 2019 and carried out 50% fewer inspections.
One week after the publication of that report, OSHA announced another national stress program, this time aimed at conducting more heat-related workplace inspections to protect workers from injury or death.
Thermal diseases have been a focus for federal and state OSHAs in recent years. According to OSHA, the incidents have doubled since the 1990s.
As part of the program, OSHA said in its announcement on April 12 that it will “proactively initiate” inspections in over 70 high-risk industries in indoor and outdoor work environments once the National Weather Service has issued a heat warning or advice for a local area.
The question for some is how OSHA will implement this initiative given that the agency is understaffed. As of 2021, OSHA had an estimated 800 safety and compliance inspectors, a minimum level of 45 years, according to a report from the National Employment Law Project.
“OSHA’s enforcement mechanisms for thermal hazards under the general duty clause will continue to be limited,” said Andrew Brought, Kansas City, Missouri-based partner of Spencer Fane LLP, whose area of operation includes OSHA and health and safety issues.
“Heat-related inspections account for only 0.5% of all federal OSHA inspections and the agency’s focus program only aims to increase that number by doubling it over the three-year period,” he said.
OSHA “has traditionally been short-lived in terms of the jurisdiction it oversees,” said John Ho, a labor and employment lawyer and chairman of Cozen O’Connor PC’s OSHA practice in New York.
“Although Congress gave OSHA a $ 20 million increase in its budget for fiscal year 2022, it was still much smaller than Biden’s original request. So there will continue to be problems with how much land OSHA can actually cover given the number of compliance officers. “although a considerable sum of 20 million dollars, almost 7.3 million dollars, is intended for enforcement, which should help.”
A spokeswoman for the Department of Labor said, “OSHA will use its discretion to apply its limited human resources as needed to achieve the objectives (thermal stress program) while balancing the need to address many other hazards under OSHA’s jurisdiction. “
Differences between fighting heat illnesses and deaths and ensuring covid-19 safety should give OSHA a step, legal experts say.
“I think there are enough differences between covid and heat illness from the agency’s perspective,” said Eric Conn, Washington-based founder of Conn Maciel Carey LLP. “Heat disease is not new and new, and the control measures for managing heat diseases are not new and new, which, regardless of the national focus program or not, made the implementation of (covid-19 safety measures) really challenging.”
Mr Ho said “OSHA has maintained heat illness through the general duty clause for a long time. This is not a new application priority for OSHA, so past experience helps identify industries and companies where this is more common.”
In 2011, OSHA launched a campaign to prevent heat diseases in order to educate, “so that they hit the ground, so to speak, with the heat disease (national center of gravity program)”, said Mr. Ho.
While OSHA says that the center of gravity program will contribute to improved compliance, a rule on heat illness – which is likely to come with better guidance and increased fines – is considered years away. OSHA said in its announcement on April 12 that the National Emphasis Program is a way to “immediately improve compliance and compliance efforts, while continuing to work long-term to establish a rule for the prevention of heat illness.” That process started in September 2021, and the regulation usually takes years.