Tips and resources for employers to comply with Oregon’s new heat illness prevention rules

In 2022, Oregon Occupational Safety and Health Division (Oregon OSHA) adopted permanent rules to protect workers from heat-related illness. As we approach the end of the second summer under the new rules, this article provides an overview of the rules and offers practical tips to assist agricultural employers with compliance.

Oregon’s heat illness prevention rules

The heat illness prevention rules for agriculture are found at OAR 437-004-1131.  

The rule requirements are triggered when an employee performs work in conditions where the ambient heat index equals or exceeds 80 F or above. The heat index in a work area is also known as the “apparent temperature” and is calculated to determine what the temperature feels like to the human body when relative humidity and the air temperature are combined. The calculations are published by the National Oceanic and Atmospheric Administration’s National Weather Service.

The rules do not expressly place the onus of calculating the heat index on employers, but we believe that to be the case based on how the rules are written. Employers can determine the heat index by using the OSHA-NIOSH Heat Safety Tool App, or the online calculator available from the National Weather Service.

Access to shade: When the heat index is 80 F or higher, employers must establish and maintain shade areas meeting the following criteria:

• Open to the air on three sides or have mechanical ventilation for cooling;
• Accommodate the number of employees on recovery or rest periods so that they can sit in a normal posture, fully in shade;
• Located as close as practicable to the work area; 
• During meal periods, must be large enough to accommodate the number of employees on the meal period that remain on site; and
• If trees or other vegetation are used to provide shade, such as in orchards or forests, the thickness and shape of the shaded area must provide sufficient shadow to protect employees.
• If providing shade is not safe or feasible, employers must implement alternative cooling measures that provide equivalent protection.

Drinking water:  Employers must provide ample opportunities to drink water and ensure an adequate supply (32 ounces per hour for each employee) is “immediately and readily available”  at all times and at no cost when the heat index in the work area equals or exceeds 80 F. 

The temperature of the drinking water must be between 35 and 77 F. Water should be replenished throughout the work shift. Employers can also provide electrolyte-replenishing beverages that do not contain caffeine (for example, sports drinks), but should not completely replace the required water supplies with the non-water substitutes. 

To be able to demonstrate compliance with this requirement, employers should maintain water logs documenting when and how water is provided, including documentation of regular intervals when water is replenished.

High heat practices: If the heat index is greater than or equal to 90 F, employers must implement additional safety measures. Again, documentation is key, including recording rest breaks and regularly training and circulating your Heat Illness Prevention Plan (described in more detail below):

• Employers must ensure effective communication so employees can contact supervisors when necessary and observe employees for alertness and heat-related illness by regularly communicating with employees working alone (radio and cell phone are acceptable), creating a mandatory buddy system, or implementing other equally effective means of observation or communication. Communication must occur in a language and vocabulary readily understood by all employees.
• One or more employees must be designated and equipped at each worksite to call for EMS and allow other employees to call for EMS.
• Employers must: (a) directly measure the temperature and humidity in buildings and structures without mechanical ventilation at the same time and location when occupied by employees to determine the current indoor heat index; or (b) use the NIOSH Heat Safety Tool app to determine the heat index outside of the building or structure and assume that it is the same inside; or (c) if the structure is designed or otherwise known to be affected by outdoor humidity (e.g. hoop houses and greenhouses), measure and use the actual humidity inside the structure. 

Employers must develop and implement a cool down rest-break schedule by choosing from one of three options listed in the rules. This includes developing an employer-specific plan that complies with the rule requirements, adopting the plan designed by NIOSH, or adopting the simplified schedule developed by Oregon OSHA set forth below:

Under the simplified schedule, the 10 minute break period is part of the two-hour interval (e.g., 110 minutes of work and 10 minutes of rest). 

• Breaks are required only during the specified heat index. If the heat index is not above 90 degrees for at least two hours, no break is required. 
• Employers can use different approaches for different groups of employees, as long as employees don’t switch between groups. 
• Piece rate employees must take the same break as hourly employees. 
• The purpose of the heat illness prevention rest breaks is to allow the body to cool down and recover from working, so employers should mandate that the breaks be taken in the shade or an air-conditioned vehicle. 
• Breaks may be provided concurrently with required meal or rest periods, except for unpaid meal breaks — the preventative cool down rest period must be compensated.

Emergency medical plan: Employers must adopt an Emergency Medical Plan that addresses employee exposure to excessive heat and must address the types medical situations that employees could encounter, including those conditions relating to excessive heat exposure.

Acclimatization plan: Employers must develop and implement a written acclimatization plan. Employers can either develop their own Oregon OSHA rule-compliant plan or adopt the NIOSH acclimatization plan. Document when employees begin and complete acclimatization, recording the specific measure used to acclimate the employee and when and how the measures were implemented. 

Heat illness prevention plan:  Employers 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 to Oregon OSHA upon request. The plan must contain at least the following:

• How employees will be 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 illnesses in others; 
• How sufficient amounts of cool, potable water in work areas will be provided;
• How employees will be provided frequent opportunities and encouragement to stay hydrated by drinking water; 
• How employees will be provided sufficient space to rest in a shaded area 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 when necessary to keep employees safe; and
• How the employer will implement heat acclimatization procedures for new employees or employees returning to work from extended absences of seven or more days.

If you have not already done so, do not neglect preparing and circulating a Heat Illness Prevention Plan as soon as possible. Jordan Ramis is available to offer any assistance you need to comply with this requirement and implementing an appropriate plan.

Supervisor and employee training:  Employers must provide heat illness prevention training to all employees, including new employees, supervisory 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. 

Oregon OSHA has imposed a number of specific requirements for that training found in OAR 437-004-1131(9). In addition, OSHA’s website contains links to training materials.  Do not neglect training for new employees and managers, particularly during periods of rapid hiring to meet seasonal demands.

Training documentation:  Employers must prepare and maintain written or electronic training records that can be provided to Oregon OSHA upon request. The records must contain 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. Employees should also be required to acknowledge, in writing, that they have been provided training and had an opportunity to ask questions and receive guidance.

Heat Illness Prevention in Labor Housing: In addition to the generally applicable requirements above, agricultural employers who provide housing for their labor force must comply with additional requirements adopted in 2022. These requirements apply when the outside temperature hits or exceeds 80 degrees Fahrenheit.

• Cooling Areas. If bedrooms cannot maintain an indoor temperature of 78 degrees Fahrenheit or less (using air conditioners or other reliable means), employers must provide at least one area for occupants to cool off. The cooling area(s) must be large enough to allow use by at least 50 percent of the occupants at the labor housing at any one time and must use at least one of the following methods: 
  • Give occupants continual access to one or more common rooms that are maintained at or a below a temperature of 78 degrees Fahrenheit (using air conditioners, evaporative coolers, air purifiers with coolers, or other reliable means). This can be done with existing common rooms, otherwise unused housing units, or other available indoor spaces that do not present additional risks to the occupants. (Oregon OSHA encourages this option).
  • Give occupants continual access to outdoor rest areas that are located away from work areas or activities that could create heat exposure. The rest areas must: 
    • Be shaded by natural or artificial means so that occupants can sit or stand in the shade. 
    • Have water misters, cooling vests, cooling towels, or equally effective means of relief. If these can only be used by only one person at a time, then employers must provide enough to supply at least 50 percent of the occupants at any time, and they cannot be shared without being washed. 
    • Have chairs, benches, and other seating located in a manner that encourages use.
• Minimizing Heat in Housing Units. If bedrooms cannot maintain an indoor temperature of 78 degrees Fahrenheit or less using air conditioners, evaporative coolers, air purifiers with coolers, or other reliable means, then employers must:
  • Protect windows from direct sunlight using natural or artificial shade so as to minimize radiant heat during all hours of the day. Window coverings must deflect the sun and not simply absorb the heat, and cannot interfere with the ability to open and close windows.
  • Make fans available at no cost for any housing occupants who wish to use them.
• Temperature Awareness. To ensure that housing occupants can remain aware of the effects of heat on the indoor environment, both immediately and on an ongoing basis, employers must provide a thermometer that displays the temperature in both Fahrenheit and Celsius in each individual housing unit. Employers are encouraged, but not required, to provide a device that also measures humidity.
• Employee and Occupant Information. In addition to ensuring that employees have received the training required by OAR 437-004-1131(9), the employer must display the “Heat Risks in Housing” poster (Spanish) provided by Oregon OSHA in one or more prominent locations that housing occupants would normally see and must include emergency contact information on the poster. 
• Access to Emergency Services. Employers must ensure that occupants always have access to a working telephone that can be used to contact emergency services. An electronic device, such as a cell phone, may be used for this purpose only if reception in the area is reliable.

Available resources

Oregon OSHA has made a number of heat-related resources available on its website. The website includes detailed information on rule requirements, fact sheets and FAQs, worksite posters, and training materials in both written and video format (in English and Spanish). 

Given the high priority Oregon OSHA has placed on these rules, employers should immediately begin implementing these practices, if you have not already done so. Jordan Ramis is ready to provide any assistance and guidance that may be helpful for implementation of the rules.

From the October 2023 issue of Digger magazine | Download Article