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Oregon OSHA Enacts Emergency Rules to Protect Workers From Extreme Heat

On July 8, 2021, the Oregon Occupational Safety and Health Division (Oregon OSHA) adopted temporary rules to bolster worker protections from the hazards of high and extreme heat, including requirements to provide shade, drinking water, cool-down breaks, an effective emergency medical plan, and training to all employees. Oregon OSHA adopted the Temporary Rules to Address Employee Exposure to High Ambient Temperatures on an emergency basis in response to direction from Oregon Governor Kate Brown, following a record-breaking heat wave that hit the Pacific Northwest in late June and concerns for potential additional extreme heat events this summer. The emergency temporary rules took effect immediately and will remain in effect for 180 days while Oregon OSHA works on a permanent heat stress prevention rule, which is expected later this fall.

The emergency temporary rules apply to all workplaces where there are dangers of heat caused by weather, including both indoor and outdoor settings, and applies “whenever an employee performs work activities and the heat index (apparent temperature) equals or exceeds 80 degrees Fahrenheit.” The rules define heat index as “what the temperature feels like to the human body when relative humidity is combined with the air temperature.” The heat index can be determined using the Occupational Safety and Health Administration and National Institute for Occupational Safety and Health’s Heat Safety Tool app or the National Weather Service’s online heat index calculator. The rules do not apply to “incidental exposure that exists when an employee is not required to perform covered work activity for more than 15 minutes in any [60]-minute period, nor does it apply to the transportation of employees inside vehicles when they are not otherwise performing work.” The temporary rules apply only to heat caused by weather; OAR 437-002-0144(2) applies when the work process generates excessive heat.

Summary of Key Requirements

Key provisions of the emergency temporary rules include:

Heat Index of at Least 80°F

When the heat index is equal to or exceeds 80 degrees Fahrenheit, employers must provide access to shade and an adequate supply of drinking water (details below).

Heat Index of at Least 90°F

When the heat index exceeds 90 degrees Fahrenheit, in addition to the above shade and drinking water requirements, employers must also implement the following:

  • Ensure effective communication between employees and supervisors so that employees may report heat-related concerns (an electronic communication device “may be used for this purpose only if reception in the area is reliable”).

  • Ensure employees are observed and monitored for “alertness and [other] signs and symptoms of heat illness” to determine whether medical attention is necessary (such as regular communication with employees working alone, creating a “mandatory buddy system,” or other effective means).

  • Ensure that each employee takes a 10-minute cool-down rest period in the shade for every 2 hours of work (which may run concurrently with other preexisting rest or meal periods), regardless of the total shift length.

  • “[D]esignate and equip one or more employees on each worksite as authorized to call for emergency medical services , and … allow other employees to call for emergency services when designated employees are not immediately available.”

  • “[D]evelop and implement an effective emergency medical plan in compliance with [existing medical services and first aid provisions set forth in] OAR 437-002-0161.” The plan must also address heat-related topics including: (a) “[r]esponding to signs and symptoms of possible heat illness,” including administering first aid measures, relieving employees from duty, and providing means to reduce body temperature; (b) “[c]ontacting emergency medical services and, if necessary and instructed to do so by the medical professionals, transporting employees to a place where they can be reached by an emergency medical provider”; and (c) “[e]nsuring that, in the event of an emergency, clear and precise directions to the work site [are] provided [to] first responders.”

  • Develop and implement practices to help employees adapt to working in the heat.

Access to Shade

To be adequate under the rules, employer-provided access to shade must comply with the following:

  • “[N]ot expose employees to unsafe or unhealthy conditions” or “deter or discourage access or use,” regardless of whether the shade is created by natural or artificial means.

  • Utilize open air or mechanical ventilation for cooling. According to the rules, “[s]hade is not adequate when heat in the area of shade defeats the purpose of shade, which is to allow the body to cool” (e.g., sitting in a car does not provide sufficient shade unless the car is running with working air conditioning).

  • Accommodate at least the number of employees on recovery or rest periods, as well as meal periods (if required to stay on-site), at the same time.

  • Be located as close as practical to employees’ work areas.

  • “Identify and implement alternative cooling measures that provide equivalent protection,” where employers can demonstrate that “providing access to shade is not safe or feasible in a particular situation.”

Access to Drinking Water

To be adequate under the rules, employers must ensure that drinking water is readily accessible to employees at all times and at no cost to them, sufficient for each employee to consume 32 ounces of water per hour, and cool (66-77 degrees Fahrenheit) or cold (35-66 degrees Fahrenheit).

Prepackaged drinking water and electrolyte-replenishing drinks that do not contain caffeine are acceptable substitutes, “but should not completely replace the required water.” Furthermore, employers must provide employees sufficient time to consume the required amount of water.

Required Training

No later than August 1, 2021, employers in Oregon must provide training to all employees on the following topics “in a language readily understood, before employees begin work that can reasonably be anticipated to expose employees to a heat index equal to or in excess of 80 degrees Fahrenheit”:

  • “[E]nvironmental and personal risk factors of heat illness, as well as the added burden of heat load on the body caused by exertion, clothing, and personal protective equipment.” The rules define heat illness as “medical conditions resulting from the body’s inability to cope with a particular heat load, and includes heat cramps, heat exhaustion, heat syncope, and heat stroke.”

  • “[P]rocedures for complying with the requirements of this standard, including, but not limited to, the employer’s responsibility to provide water, provide daily heat index information, shade, cool-down rests, how to report symptoms of heat-related illness, and access to first aid as well as employees’ rights to exercise their rights under this standard without fear of retaliation.”

  • The “concept, importance, and methods” of adapting to working in the heat.

  • “The importance of employees immediately reporting symptoms or signs of heat illness in themselves, or in co-workers.”

  • “The effects of nonoccupational factors (medications, alcohol, obesity, etc.) on tolerance to occupational heat stress.”

  • “The different types of heat-related illness [and] the common signs and symptoms of heat-related illness.

Oregon employers may want to begin implementing these safety processes and programs immediately to protect workers and remain compliant with the emergency rules. 

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 199
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About this Author

Kelly Riggs, employment law attorney, Ogletree
Associate

Kelly Riggs is an associate in the Portland office and represents public and private employers of all sizes in all aspects of employment-related litigation.  She has represented employers in federal and state courts, as well as before the EEOC, BOLI, and other state and federal agencies, and in private mediations and arbitrations, including defending claims of discrimination and harassment, retaliation and whistleblowing, public accommodations, unfair competition, breach of contract, and other common law claims.  Kelly also regularly advises employers on compliance with federal and state...

503-552-2140
Karen Tynan, employment lawyer, Ogletree Deakins
Of Counsel

Karen Tynan is an of counsel attorney in the Sacramento office of Ogletree Deakins. Karen is originally from the state of Georgia, and after graduating with honors from the United States Merchant Marine Academy, she worked for Chevron Shipping Company for ten years – sailing as a ship's officer on oil tankers rising to the rank of Chief Officer with her Unlimited Master’s License as well as San Francisco Bay pilotage endorsement.  Karen was the highest ranking woman in the Chevron fleet when she left her seafaring life.  This maritime and petroleum experience is unique among employment...

918 840 3150
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