The Newest OSHA Proposed Rule: How it Could Impact YOU.

Who doesn’t love them some OSHA?! Do you sense the sarcasm there? I cringe every time I think about ALL the things that come along with OSHA rules and regulations.

The documentation, written policies, meetings, training, etc- it all takes time and resources. And, as a small business owner, we all know time and resources are limited!

On July 1 I posted Tips for Keeping Your Team Cool This Summer. Then…the day after I posted it…yes, the very NEXT day….OSHA surprised us by issuing it’s proposed heat safety rules to keep workers safe.

They’ve been working on this heat-related injury and illness project for a long time. But the release of the proposal was definitely a surprise. And so were the contents of the proposal.

While I appreciate efforts to keep workers safe, and believe that reasonable employer accountability is a good thing, the proposed rules are less than reasonable for those operating in the death care industry.

If you have indoor or outdoor teams that work in temps at or above 80 degrees Fahrenheit, then you will want to keep reading.

For quick reading or reference, see the table of contents below.

Proposed Rule

The entire proposed rule is 437 pages long. That’s a lot of pages to read! And, in those 437 pages, OSHA includes includes statistics, case studies, definitions and, of course, the proposed rules. They’ve done a lot of great research and it’s obvious a great deal of work went into the proposal.

But…the OSHA folks don’t work in your business or in my business every day. They don’t know what is reasonable and what isn’t from a first hand experience perspective. And that is exactly why they are requesting feedback and comments from those the proposed rules will impact.

So, in the spirit of having my voice heard, I have sorted through all 437 pages and am sharing the highlights with you.

I am not an attorney and am not providing legal advice. I am not a safety professional or acting as one. I am simply sharing this information with you so you can be informed and choose to read and interpret the actual OSHA proposal for yourself.

Purpose

Per OSHA, the purpose of the proposed rule is to educate employers, employees and managers on the dangers of heat-related illnesses and injuries, as well as prevent said illnesses and injuries in the workplace. They call this proposed rule The Heat Illness and Injury Prevention rule, or HIIP.

In he proposal, HIIP specifically identifies the following injuries and illnesses: death, heat stroke, heat exhaustion, heat syncope (aka fainting), rhabdomyolysis (look it up here), hyponatremia (low sodium), heat cramps, heat rash, heat edema (swelling), kidney issues and reproductive health.

Who The Rule Targets

Believe it or not, the proposed rule to prevent heat-related illness and/or injury applies to both indoor and outdoor workers. According to OSHA, a worker’s physical heat stress may be created not only by the weather, but also from other heat sources such as machinery, light, body movement, clothing and personal protective equipment (PPE).

In the monument world, this includes but is not limited to: shop personnel, installation crews, on-site inscription teams.

In the funeral world, this includes but is not limited to: crematory workers, graveside teams (ie set up and tear down teams, grave diggers, etc), funeral directors while at the graveside.

In the burial vault world, this includes but is not limited to: concrete plant teams, graveside crews.

Of course, there are exceptions, such as employees who strictly work in air-conditioned offices. However, if an employee works outside for fifteen consecutive minutes, in temps at or above 80 degrees Fahrenheit, then the proposed rule will apply to them.

Proposed Employer Requirements

According to OSHA, research shows a heat index of 80 degrees Fahrenheit is the trigger for documented cases of heat-related illnesses and injuries. It is my understanding the the trigger temperature is the “at risk” temperature.

Then, they have also identified a high heat index of 90 degrees Fahrenheit.

There is a different set of rules for the trigger temp and the high heat temp. This leaves employers having to monitor temps and conditions all throughout the day, as well as react accordingly to said temps.

Below is a list of requirements proposed by the HIIP rule.

This is not an exhaustive list and only includes the things I thought to be of particular interest to the death care industry. I highly recommend you do your own reading and research. The proposed rules may change as OSHA accepts comments and are not to be interpreted as law.

Adopt a Written Heat Injury & Illness Prevention Plan

Paragraph (c)(4) proposes employers with more than 10 employees are required to develop and implement a written Heat Injury and Illness Prevention Plan (HIIPP).

Chances are, you likely have an informal HIIPP that you operate by. As small business owners and managers, we just take care of our team and move on. Our team is our family!

But, with OSHA, you need to have a formal, written plan that is actionable and follows their guidelines.

No big deal, right?

Well, if you are working in the death care industry, and visit multiple cemeteries throughout the year, then you best get your writing gear ready! Because OSHA requires that this plan be written for each worksite.

In the death care industry, your personnel visits countless cemeteries per year, making this an overwhelming task. But, not to fear, OSHA says you may create one plan for all similar worksites and THEN a plan for how you ensure your company communicates protocol efficiently and effectively to impacted personnel given the multiple worksites.

Gotta love all of those plans, right?!

For additional information on written heat safety plans, visit OSHA’s website here.

Employee a Workplace Heat Safety Coordinator

Paragraph (c)(5) would require you designate a workplace heat safety coordinator. If you are a small business, this person might be you! Congratulations on your new title!

Titles aside, whoever you designate for this role needs to be able to enforce the policy and be continually educated on identifying the symptoms of and conditions associated with heat-related illness and injury symptoms.

I am also assuming that this person must be great at documenting compliance. Because, let’s face it, the only way one truly complies is by documenting that it is actually happening, right? And, if someone should become injured or ill, it would be in the business’ best interest to have their documentation in place.

Monitor Heat Conditions

In their proposal, OSHA sets the standard for heat triggers and high heat warnings. They’ve also created an app to assist employers in monitoring the heat and calculating the heat index for indoor and outdoor work spaces. You can read about the app here.

I believe the app will walk employers through how to calculate the heat index based on an employee’s total heat exposures. However, I haven’t checked the app out for myself just yet.

You can also find a heat stress calculator on OSHA’s website here.

While these tools may be great, someone still has to monitor them. Many small businesses are already short handed and having trouble hiring qualified personnel. Is it reasonable to expect a small business with the minimum of ten employees to implement this kind of monitoring and compliance?

For many businesses this would mean hiring a non-revenue generating employee or paying for outsourced services they may or may not be able to afford. This would add to the cost of doing business and, thus, increase costs associated with providing necessary death care related products and services to consumers.

Provide Breaks

This is one of the more problematic issues, and not because I have a problem with breaks. Rather, I have a problem with the technicalities surrounding OSHA’s proposed breaks.

Proposed paragraph (e)(8) would require employers to allow, encourage and pay rest breaks if needed to prevent overheating. Additionally, it allows for the employee to decide on the timing and frequency of said breaks.

This doesn’t sound like a big deal at first. But…it is.

Currently, federal law doesn’t mandate an employer provide rest breaks. Now, state laws may vary, but the Federal Law doesn’t currently mandate them.

And, of course, most small businesses that I am familiar with, are glad to provide time for their team to cool down and kick back. It may cost the employer a little, but it pays off a lot.

But, with this proposed rule, a small employer would need to ensure that temps are being monitored and effected employees are taking their breaks as mandated. Currently OSHA is proposing two fifteen-minute paid breaks every two hours when heat indexes are met.

AND…if the temps are above the high heat trigger, it is proposed that the employer must paid not only the mandated breaks, but also breaks that the employee says they need.

AND…the employer must pay for the time it takes the employee to get to the designated break area and THEN pay the fifteen minute break and THEN pay the time it takes the employee to get from the designated break area back to their work station.

AND…, in addition to all this time the employer must pay, they must also prove they are complying with the mandate. So, in order to prove their compliance, an employer would need to implement some kind of clock-in/out system that notates when the employee is on their paid break as mandated if the heat index requirements are met.

AND, the employer must also police the clock in/out system to ensure that employees are actually clocking in/out when it is time for said breaks.

Then there is the question of how to pay for the breaks.

Paying for the breaks seems simple at first. But it isn’t.

If the employer is paying mandated breaks every two hours, plus the time it takes the employee to get to and from the designated break area, plus breaks the employee says they need when heat indexes are at or above the high heat index, there is going to be a lot of overtime involved.

Why?

Because all of those breaks take away from the work day. And this work ain’t gonna complete itself!

Of course, the more overtime the employees work, the higher the employee and employer portion withholding is, so the government doesn’t mind if your team works overtime!

Interestingly enough, I was unable to find where OSHA addresses the issue of overtime in the proposal.

Overtime Issues

I have several questions surrounding overtime wages and the proposal surrounding mandated breaks. My big questions are:

• Must an employer pay overtime wages/withholdings/taxes on overtime wages paid due to the paid breaks lengthening the work day? (ie it now takes longer to complete a job because of mandated break times)

• Must an employer pay overtime wages/withholdings/taxes on paid breaks mandated to be taken during overtime hours?

• Will there be tax benefits for employers paying higher worker’s comp insurance rates due to increased overtime wages in response to mandated, paid breaks?

Legal Questions

Then there is the question of legalities.

• It would seem that this proposal would put the burden of preliminary medical diagnosis directly on the business. Very few businesses with the OSHA proposed minimum of ten employees have a medical professional licensed to monitor vitals and symptoms on staff. But, by requiring the business to have a system for monitoring employees for heat-related symptoms, is OSHA placing the burden of medical monitoring and/or preliminary diagnosis on the employer?
• Employees aren’t required to disclose medical conditions to their employers. So, if an employee is experiencing symptoms of a undiagnosed diabetes (primarily thirst), but the employer believes said symptoms to be related to a simple heat illness, who is responsible for ensuring the appropriate diagnosis is being made?
  • And because so many other illnesses and injuries share symptoms of heat-related illnesses and injuries, would the employer then need to require any employee experiencing symptoms to get professional medical evaluations prior to returning to the job? And, if so, would the employer be responsible for paying for the time taken to get evaluated as well as the evaluation?
  • And if the burden of making the correct preliminary diagnosis falls on the employer, would they now need to carry insurances protecting them against medical malpractice?
• OSHA states an employer may use a “buddy system” in which employee-buddies evaluate each other for signs and symptoms of heat-related illness or injury.
  • What is the buddy’s legal risk by engaging in this practice if they miss a sign or symptom?
  • Is it fair for a government entity to propose opening every day employees up to assuming the legal risk associated with placing their colleague’s health and well-being into their hands?
  • Is it fair for an employer to pass that legal risk on to it’s employees in an attempt to veil it’s own legal risk?
  • Should employees be educated that they may be opening themselves up to unnecessary legal risk by engaging in this buddy system practice?
  • Does the employee have the right to decline engaging in this practice? And, if they decline, does the employer have the right to terminate them, or must the employer accommodate the employee’s wishes?

There are also legal questions regarding the termination of an employee given the paid break mandates.

• If an employee does not exhibit signs or symptoms of heat-related illness or injury, but claims they are experiencing symptoms and needs another paid break, and it is believed by the employer that the employee is actually “riding the clock”, can the employer terminate the employee’s employment? Or is their employment now protected by the OSHA mandate, thus making it a wrongful termination?
  • In this case, what would prevent an employee from job hoping with the sole intent to rack up several wrongful termination suits?

OKAY. So we have talked a lot about paid breaks. But…we haven’t talked about toilets and how they factor into the paid break issue.

Provide a Toilet

In the death-care industry we service a wide variety of cemeteries. And, while each cemetery may be different in it’s ownership and infrastructure, they all have one major thing in common: they are built for the dead.

And, because those who are deceased do not have a need for restroom facilities, most cemeteries do not have them. In fact, a recent poll of 79 monument companies from across the US, it was revealed that fewer than 10% of the cemeteries they work in each year actually have a restroom facility.

Only one monument company on the 79 polled, reported that every cemetery it visits has restroom facilities available for it’s crews to use. That monument company is located in a heavily populated metropolitan area that is home to primarily corporate-owned cemeteries.

This is a problem when OSHA proposes all employees have access to a restroom when temps are 80 degrees Fahrenheit or greater. OSHA is proposing this rule because it believes that denying an employee access to a restroom at these temps actually discourages the employee from staying hydrated.

According to their proposal, if there is not a restroom on site, it is my understanding that employers must pay for the time it take employees to get to a restroom, use it and return to the job. For crews servicing cemeteries that are miles from the nearest gas station, who may also want to milk the time clock, this will become really expensive really quick! It also leads me back to my questions regarding overtime pay and legal issues.

Additionally, how are employers to document where the nearest toilet to every single cemetery is located? And, how are they to document that access to a toilet was granted when there isn’t one anywhere near the employee?

Provide Drinking Water

Paragraph (e)(2) would require employers to provide clean, cool drinking water to employees working above the heat trigger. This is a no-brainer, right?!

But, OSHA is seeking comments to determine if they should require said drinking water to be provided at a specific temperature. Apparently some states do already require water to be provided at or below a specific temperature. However, it would be nearly impossible for employers with mobile cemetery crews to comply with a temperature requirement.

Provide Break Areas at Outdoor Worksites

This one is interesting. OSHA is proposing that the employer provide designated break areas where employees can cool off and hydrate. The mandated, paid breaks would need to be taken in the actual, designated break areas.

While this seems easy enough, it could get sticky for those working on-site in the cemetery.

For monument and vault companies, it is not uncommon for employees to take a break in their vehicle or in a shady place in the cemetery. This sounds great, right?

Well…you might be wrong.

If your setting or vault truck is not air conditioned, and you are planning to use it as shade, OSHA is proposing that vehicles that are being used as part of the work itself may be considered unacceptable break areas.

Why?

Because, if the employee is breaking outside of the vehicle and using the vehicle for shade, an accidental run-over could occur. And, equipment used for work can cause radiant heat, which can prevent an employee from cooling down.

If your trucks are air conditioned, and you intend for the employee to use the air conditioned cab as a break area, you should be okay as long as all employees intending to take a break in the cab also reasonably fit in the cab.

But there is still the toilet issue.

Additionally, OSHA is requesting comments on this subject and specifically want to know if they should mandate that various controls be placed on vehicles intended to be used as an air conditioned break area.

Get New Employees Used to the Heat

Proposed paragraph (e)(7) requires employers to “acclimitize” new or returning employees. Honestly, when I first read it, I wasn’t sure what “acclimatize” meant. This basically means OSHA will require you to get new and returning employees used to the heat.

This means you need an “acclimatization plan”. This plan may include your company utilizing one of two options. These options are made complicated and weird by their wording.

But, basically….

If an employee has been out for more than fourteen days, they need to be re-acclimatized to the work environment. New employees must be acclimated and there is included verbiage for those who may have been acclimated at a previous job.

The first option basically requires the employer to measure the heat and, if it exceeds the trigger, provide a minimum of a 15 minute paid break every two hours, as well as observation for heat illnesses or injury. It also requires you to provide hazard alerts along with information on how the employee should seek help.

The second option basically requires you to gradually expose the employee to heat if temps are above the trigger. This is a gradual exposure that increases each day. If the employer choose the gradual approach, it is proposed that they must pay the employee for a full day’s work, even if the acclimitization prevents them from working a full day.

Assess Employees For Heat Related Symptoms

This one is interesting and we briefly touched on it earlier in the post. Paragraph (f)(3) proposes standards for observing employees for signs and symptoms of heat-related illness when heat exceeds the trigger. This may be done one of two ways. The first way is to use a buddy system to asses one another for heat related symptoms. The second option is to have a supervisor assess employees for symptoms.

I discussed this previously, but did not touch on the proposed additional requirements for employees who may work alone at a work site.

For employees that work alone, OSHA proposes having two-way communication to asses for heat-related symptoms every two hours. From what I understand, this two-way communication is a system designed to check in with the employee and, if the employee doesn’t respond after a set amount of time, the employer is to send help.

However, in the death-care industry, a lack of response is not typically indicative of a health-related emergency. There are several reasons an employee would not immediately respond, including a lack of cell service, a desire to not rudely interrupt a graveside service, and the following of safety protocols prohibiting the use of cell phones while operating heavy machinery.

Additionally, a company could implement automated check-ins with the use of AI. However, the rural nature of many cemeteries would prevent this from consistently working as designed due to a lack of reliable cell service in many areas. This could actually detract from employee safety, as managers would then be relying on a faulty system to ensure the safety of team members.

OSHA does not mention record-keeping in their proposed standard. However, one would think that record-keeping would be necessary for a company to prove compliance.

This issue also brings me back to the legal issues I listed above.

Call to Action: Get Involved!

It is important for small business owners to engage in the OSHA rulemaking process. While I do believe OSHA has done a great job of thoroughly researching and working through the various heat-related risk factors, they have done so with the sole goal of protecting the employee.

And, while I agree that employees need to be protected, it shouldn’t be to the detriment of the employer. Rather, it should be in a manner that simultaneously protects both the employer and the employee. This includes offering legal and financial protections for employers as they navigate sensitive employment, medical, financial and legal issues that will arise should these rules be implemented.

Further, it is important to note that “one size does not fit all” when it comes to regulations. Expecting small death care businesses to comply, given the unique challenges we are faced with in the field, is simply not realistic. Does that mean we don’t want to keep our crews safe? Absolutely not! It means we want to keep them safe but that this particular ruleset isn’t “it”.

Got Something to Say?

As you read through this, you may not agree with my opinions. You know what? That is okay! I truly believe that “iron sharpens iron” and would love to hear opinions and experiences that might not align with mine. Perhaps you have a perspective I hadn’t considered. If so, share it with me!

Additionally, you may have questions I should add to my list. If so, share those with me too! I will review all comments, suggestions and questions and add them to my list for inclusion in a lengthy comment I am drafting to send to OSHA in response to this proposed rule. I will share that comment with you in a later post.

Moving Forward

Just as I believe we become better together, so does the rulemaking process. It was designed to request comment and engagement from anyone willing to engage. And, for the sake of keeping the conversation focused, they have included a list of specific areas for which they are seeking comment. You will notice those calls for comment as you read through the proposal.

SO, I invite you to read through the proposal for yourself and join me in commenting once it is formally published for comment. Your comments do not have to be “sophisticated” or worded with fancy words. In fact, they only need to provide information on why a rule should or should not apply to our industry or provide suggestions for how it should be revised.

Further, if you are a member of a professional business organization, whether it is death care related or not, please encourage them to draft and submit an opinion on behalf of it’s members that will benefit the businesses it serves.

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