Recent OSHA Activity Hints at What It Seeks to Accomplish in Trump Administration (Part II)

Some musings from Jim Frederick and Heather MacDougall for workplace health and safety watchers

Recent OSHA activity suggests how the agency seeks to shape workplace health and safety policy during the current Trump administration. Our updates are broken into two Parts: OSHA’s Regulatory Agenda (Part I) and Proposed Heat Rule (Part II).

We reported on 25 new proposed rules and one final rule from OSHA in Part I.

This is Part II of our newsletter on recent OSHA activity that suggests how the agency seeks to shape workplace health and safety policy during the current Trump administration.

OSHA Proposed Rule on Heat

Other rulemaking that will be addressed in the unified agenda is the proposed heat rule. Last year OSHA, issued a proposed rule to address heat at work. The name of the proposed rule is Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings. The agency and President Biden pre-released the rule in July 2024, and the rule was formally proposed when it was included in the Federal Register on August 30, 2024.

Since then, the public has had the opportunity to submit comments on the rule. OSHA received more than 45,000 comments to the record during the comment period. That is a significant number of comments for an OSHA rule. OSHA has an obligation to review and consider each unique comment.

OSHA has initiated a public hearing on the proposed rule. The hearing began on June 16^th and concluded on July 2^nd. The OSHA hearing is being held virtually. Anyone can tune into the hearings from a link on OSHA’s website.

OSHA received more than 200 notices of intent to appear at the hearing. That too is a significant number of requests to appear at the hearing. This OSHA rulemaking hearing is a legislative-type hearing, not an adjudicative one. It is an informal administrative proceeding intended to allow the agency to gather information and clarify issues. Each of the persons that requested to appear at the hearing will be included in the schedule for the hearing. Representatives of OSHA may question witnesses.  In addition to presenting testimony at the hearing, people that have filed a notice of intent to appear may also ask questions of other people offering testimony.

Following the hearing, participants will be afforded the opportunity to submit post hearing comments and post hearing briefs to further support their testimony and position on the proposed rule.

The OSHA comment process and public hearing offers all OSHA stakeholders with an opportunity to be involved, to state their concerns with the hazard(s) being addressed or with the proposed rule (or parts of the rule), to share success stories about controlling the hazards, and to discuss the economic impact of the OSHA rule. It is important and vital for stakeholders to participate in the process, and OSHA considers all the testimony offered by stakeholders.

While some speculated that with President Trump’s return to the White House, rulemaking would not move forward on the proposed heat rule, that has not been the initial indication—as evidenced by the public hearings on the proposed rule that was previously scheduled by the Biden Administration. In fact, we do not think that OSHA abandoning heat rulemaking short of a final rule is the likely outcome. The choice of Lori Chavez-DeRemer for Secretary of Labor, along with both union and business support for some form of a heat rule, are indications that OSHA will continue with rulemaking on heat. Among business support, there is also a view that finalizing a rule during the Trump Administration is favorable to leaving rulemaking in the hands of the next Democratic administration. If the current administration moves forward with a heat rule, it may be that the final rule is less detailed than the current proposed heat rule.

Next Steps on Heat Rulemaking

Following the conclusion of the public hearing on the proposed heat rule, OSHA expects the post-hearing comment period to last for 90 days until September 30, 2025. During this time, individuals who participated in the hearing can file additional evidence and data and written briefs. Once the hearing and post hearing comments and briefs are completed, OSHA will have a considerable task to review the volume of evidence presented—all the comments submitted during the pre-hearing period, the hearing itself, and the post-hearing comments and briefs. The agency is then required to explain how it addressed all the evidence, make any necessary revisions to its risk, economic, and feasibility analyses, and draft a final standard—that’s assuming OSHA does not determine to abandon a heat rule. This final standard must then be reviewed by OIRA before it can be officially issued.

When the unified agenda is published, it will be interesting to see the timeline for the heat rule, as completing it before the end of the Trump Administration—even if that is 3 1/2 years out—will be a tall order.

Summary of Heat Rule Public Hearing

If that information isn’t enough for you, you can get more!

The public hearing is fully remote and recorded, so if you miss a day, you can easily catch up on previous testimony. That means you can binge-watch the thirteen days of testimony at your convenience. But if you’re not that much of an OSHA nerd, to help you catch up on the past two weeks, we’re providing a summary of select, key stakeholder testimony from the public hearing:

American Federation of Labor and Congress of Industrial Organizations (AFL-CIO): It is no surprise that the AFL-CIO is generally supportive of the rulemaking on heat. The AFL-CIO stated at the public hearing that the proposed heat rule is needed to protect workers, including workers such as Postal Service workers that are not protected by individual states’ protective action on extreme heat exposure. While viewing the proposed heat rule as a “comprehensive approach” that is “quite reasonable” and “relatively straightforward,” the AFL-CIO testified that the final rule should be strengthened in two key areas: “the need for recordkeeping requirements and the need for clear anti-retaliation provisions.” The AFL-CIO advocated for stronger heat incident recordkeeping requirements to include what is “commonly considered first aid,” as such incidents are “substantial warning signs” and are “critical for employers, researchers, and authorities to identify areas where intervention and more resources are needed.” In addition, the AFL-CIO noted a distinctive aspect of the hearing—the lack of participation by NIOSH.

The U.S. Chamber of Commerce (the Chamber): Marc Freedman, vice president for workplace policy at the Chamber, testified on behalf of the Chamber, and stated, “At the outset, I want to make clear that employers should protect employees from heat-related injuries and illnesses in both indoor and outdoor work environments where there is extreme heat, or extended exposure to heat. But OSHA’s steps to address the issue beyond their current guidance on “Rest, Water, and Shade” must be both consistent with the agency’s regulatory authority and feasible for the country’s millions of employers and different climates.” Mr. Freedman added, “As I’ve been granted the first employer representative speaking slot, I want to be the first to use a term you will be hearing throughout these proceedings—OSHA’s proposed standard is a one-size-fits-all approach. The proposed standard makes no allowances for differences in geography, workplaces, employee sensitivity to heat, nature of the job or tasks, or any of the other many variables associated with determining how to protect employees from overexposure to heat.” The Chamber pushed for a performance-based standard: “Contrary to OSHA’s claim that the proposed standard is a performance standard, it contains the particularity of a specification standard. If this was actually a performance-oriented standard, employers would be held accountable for the end goal of protecting employees from over exposure to heat rather than the myriad of specific requirements contained in the proposed standard.” [Note: Heather represented the Chamber on its comments on the proposed heat rule.]

Office of Advocacy, U.S. Small Business Administration (SBA or Advocacy): Chip Bishop, deputy chief counsel for SBA’s Office of Advocacy, testifying on behalf of SBA said, “Advocacy recommends that OSHA withdraw the proposed rule, and if OSHA decides to propose a new rule, it should re-engage with small entities and develop a proposal that is performance-based, targets positive health and safety outcomes and incorporates the previously stated yet ignored issues,” including the issues that small entities raised during the Small Business Regulatory Enforcement Fairness Act (SBREFA) panel that OSHA failed to incorporate in the proposed rule. The SBA stated in its testimony that despite OSHA’s assertion that the proposed rule is a programmatic standard intended to be flexible, the proposal is a one-size-fits-all approach that “largely requires every employer to adopt the same plan with the same provisions, triggers and protocols,” and it is “inflexible, overly prescriptive, and fails to account for sector-specific and regional differences.” The SBA testified that OSHA has estimated that small entities would incur aggregated annualized costs of approximately $8.2 billion, but Advocacy found that this is an understatement of costs, which would put small entities at a competitive disadvantage. The SBA also testified that the proposed heat triggers are too low, noting that some businesses operate in climates that do not drop below 80 degrees for weeks at a time. Bishop suggested that OSHA look at metabolic body heat rather than environmental temperature. The SBA testified that the proposed rule includes ambiguous terms and arbitrary provisions that make compliance difficult and onerous, including inflexible rest breaks that are impractical or infeasible for time-sensitive products or materials like asphalt, concrete, or agricultural products. Additionally, Bishop noted that inflexible rest breaks can create a greater hazard in some industries, such as tree care and tower services where climbing from heights is a significant safety risk and requiring artificial shade and temporary structures and operations like road construction, can introduce greater hazards, such as site obstructions.

National Federation of Independent Business (NFIB): NFIB spoke in opposition to the proposed heat rule. NFIB stated, “It is extraordinarily difficult for [small businesses] to comply with a one-size-fits-all heat standard given its sheer impracticality, vagueness, and costs that do not fit the needs of all businesses today.” Beth Milito, Executive Director for NFIB, highlighted two of these concerns, including NFIB’s position that federal law does not authorizes OSHA to regulate heat exposure. NFIB noted that, by the agency's own admission, the proposed standard reaches 150 million employees, which is substantially more than the 84,000,000 that OSHA's COVID-19 vaccination mandate reached—a number that the U.S. Supreme Court cited in calling the vaccine mandate a “not everyday exercise of federal power.” NFIB testified that the proposed heat standard “encroaches on the lives of those 150 million employees and on their employers, specifying what they must do and when and if the temperature rises too.” According to NFIB, “much of the proposed heat standard constitutes a public health measure and not merely a workplace safety standard”; as such, before OSHA can adopt such a standard, they must receive authorization from Congress to regulate heat exposure. NFIB also expressed concerns about work stoppages that it said would occur under the proposed rule’s break requirements, “where materials like asphalt and concrete are time sensitive and must be applied immediately.”

American Society of Safety Professionals (ASSP): Three ASSP leaders shared their expertise: Professor Robert Drane, MS, CSP, Chair of ASSP’s Government Affairs Committee; John Johnson, CSP, Chair of the ANSI/ASSP A10 Committee for Construction and Demolition Operations; and David May, ScD, Vice-Chair of its A10.50 Subcommittee. ASSP’s remarks called for clear, science-based solutions and emphasized ASSP’s role in shaping best practices. “ASSP members emphasize the importance of a standard that is clear and practical to implement, particularly for employers with limited resources,” Drane said, adding that ASSP’s role is to ensure that any rule is informed by real-world insights from practicing safety professionals. Johnson noted the relevance of ASSP’s ANSI/ASSP A10.50 standard and encouraged the heat rule to align with it: “As OSHA considers a federal rule, we urge the agency to look to A10.50 as a key reference point and to align its final rule with the protections our standard outlines.” Dr. May addressed the technical basis underlying the ANSI/ASSP A10.50 standard, stating, “A10.50 offers practical, science-based guidance that we believe can complement OSHA’s rulemaking and provide a strong foundation for compliance and worker protection.” [Note: Heather joined the ASSP Board of Directors as a Director-At-Large as of July 1, 2025]

The National Safety Council (NSC): Anthony Abron, NSC Government Affairs Manager, testified on behalf of NSC and agreed with many of the provisions of the proposed heat rule, including—workers experiencing temperatures of 80°F or higher should receive shade, rest, and water to protect against occupational injury and illness due to heat; a rest break in shade for 15 minutes every two hours with potable water available makes sense for worker protection under a high heat environment; some acclimatization process for new workers and workers returning to the jobsite after 14 days or more away is important and critical for their safety and health; and that supervisors and managers should receive the same training as front-line workers and there should be required additional training on emergency procedures, such as taking heat-related measurements, emergency response, and emergency first aid. NSC also noted that employees with personal medical conditions may be adversely affected by exposure to high heat; and nonphysical risk factors, such as physiological stresses from work performed, add to a worker’s overall heat load.

While generally supportive of the proposed heat rule, NSC acknowledged that OSHA has additional work to perform so the proposed standard is workable for businesses, including “for companies with multiple locations, work outdoors and/or jobsites that change frequently, consistent site-specific monitoring for the heat illness and injury prevention plan may be problematic and ultimately costly to an employer.” In addition, NSC noted that “an employer with multiple worksites might find difficulties in designating a coordinator for each worksite. OSHA should provide alternative compliance-related protocols an employer can use that would still meet the intentions of the coordinator role in the proposed standard.” NSC also asked that “OSHA should outline in the final standard whether employers can make their own acclimatization schedule and the proper guidelines it must follow” and “clearly address the use of PPE designed to provide cooling.

The Associated General Contractors of America (AGC) and the Associated Builders and Contractors (ABC): Both AGC and ABC called on OSHA to implement performance-based requirements in the standard because of the many variables within the construction industry. “OSHA should recognize, and I believe has recognized in the past, that the construction industry faces unique challenges compared to those in other industries,” said Kevin Cannon, director of safety and health services at AGC. Because of those unique challenges, Cannon said construction should be exempt from the temperature recordkeeping requirements included in the proposed rule. “Our belief is that this data has limited utility in predicting environmental conditions on future projects and would not necessarily be considered representative sampling or objective data,” he said. Contractors are also seeking more flexibility based on typical regional weather. They noted that with an initial trigger at 80°F under the proposed rule, employers would need to provide water, a break area and acclimatization for new or returning workers. At 90°F, employers would also have to provide 15-minute rest breaks every two hours and implement a supervisor or buddy system to observe for heat-related health symptoms. Provisions in the proposed heat rule like those setting rules for rest breaks “are impractical and would be exceedingly difficult to manage on construction sites due to time and schedule-based activity interdependencies,” said Joe Xavier, senior director of health and safety at ABC. As an example, he talked about the complications the rule would add for crews placing concrete, stating that the mandatory breaks could cause a strain for contractors managing the timing of trucks, the concrete pour rate, and other factors. In vertical construction, crews working on swing stage scaffolds on tall buildings could spend more time getting to a preset break location than taking the break itself, Xavier added. “ABC recommends that OSHA allows supervisors and employees to work together and coordinate safe approaches for rest breaks focusing on individual employees’ needs, the nature of the work and the specific workplace conditions,” he said. 

That’s it for now but stay tuned for more on the heat rule and OSHA’s unified agenda!