On October 30, 2025, the U.S. Small Business Administration’s Office of Advocacy (Advocacy) submitted post-hearing comments on the Occupational Safety and Health Administration’s (OSHA’s) proposed Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings rule. [89 Fed. Reg. 70698 (Aug. 30, 2024)]. Advocacy’s comments supplement its earlier public comments and testimony, address several questions it asked witnesses during OSHA’s public hearing on the proposed rule, and respond to OSHA’s inquiry about how it might structure and enforce a more flexible, performance-oriented approach.
OSHA’s proposed rule would apply to all employers in general industry, construction, agriculture, and maritime (where OSHA has jurisdiction) whose employees are exposed to heat hazards above OSHA’s proposed 80-degree (initial) and 90-degree (high heat) heat index triggers. The rule would require covered employers to develop heat injury and illness prevention plans and adopt various other requirements. The proposed rule contains exceptions for certain low-risk activities and emergency responders.
Advocacy has been actively involved in this OSHA rulemaking process for several years, most importantly as a member of the OSHA Small Business Advocacy Review panel (also known as a “SBREFA panel”) on the proposed rule in 2023. Advocacy has also discussed this issue at multiple small business roundtables and in numerous meetings and discussions with small business representatives. If OSHA moves forward with a final rule or proposes a new standard, Advocacy recommends that:
- OSHA should avoid a one-size-fits-all rule and consider a more flexible, performance-oriented approach. Several possible alternatives include Nevada’s new state heat illness prevention regulation, a possible Table 1 (or Appendix 1) approach borrowed from OSHA’s silica in construction rule, or separate standards for different sectors such as general industry, construction, and agriculture.
- OSHA should consider and provide for work environments and situations that are not currently addressed in the proposed rule, including hybrid or mixed outdoor/indoor work environments, situations where compliance would be impracticable, infeasible, or would create a greater hazard, and provide for employee vulnerabilities, susceptibilities or confounding factors.
- OSHA should revisit its definition of “economic feasibility,” and, in light of the Supreme Court’s recent Loper Bright decision, adopt a more appropriate definition, such as a cost-benefit analysis provided in Executive Order 12866.
COMMENT LETTER
Post-Hearing Comments on OSHA’s Proposed Heat Injury and Illness Prevention
(PDF, 266KB)
CONTACT:
Bruce Lundegren
EMAIL:
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