Biden-Era Heat Rule Puts Workplace Safety Regulator in a Bind

Making a Biden-era heat protection proposal more business friendly, a major priority for the Trump administration, will trigger legal challenges that could force the nation’s workplace safety regulator to restart rulemaking, attorneys warn.

The US Occupational Safety and Health Administration has signaled under President Donald Trump that it intends to overhaul the Biden plan to require employers to protect workers from extreme heat. There’s also growing pressure from employers to modify the proposal rather than abandon the effort entirely.

OSHA must now balance industry demands for a redo, a regulation-averse White House, and the legal principal known as the logical outgrowth doctrine, which requires the final rule to remain a foreseeable extension of the original proposal.

While the agency can make changes on a proposed rule issued by a previous administration before issuing the final version, it can’t take an entirely new approach without notice, according to attorney Randall C. Schauer of Fox Rothschild LLP.

“A shift from a detailed specification standard to a performance-based standard would raise serious logical outgrowth concerns, because it fundamentally changes the nature of the regulatory obligation,” said Schauer, by “moving from telling employers precisely what to do to telling them what outcome to achieve.”

Rewriting the heat proposal could take years: OSHA started the rulemaking under the Biden administration in 2021, and has received more than 47,000 comments on it to date.

Labor unions want prescriptive requirements and would likely oppose any rule that dilutes the Biden-era proposal.

“The proposal is already designed for employers to adapt to their workplace while still protecting workers—that’s what a programmatic standard does,” said Rebecca Reindel, the director of occupational safety and health for the American Federation of Labor and Congress of Industrial Organizations.

AFL-CIO asked for a standard that includes acclimatization plans as well as mandatory paid rest breaks. Reindel said any final rule should have a clear set of requirements for employers, not vague ones.

Susan Bisom-Rapp, a professor at California Western School of Law, said unions have to prioritize their limited resources towards legal fights where they foresee having the greatest impact.

“If they think there’s a viable argument using the logical outgrowth theory, it might be worth their while to challenge,” said Bisom-Rapp.

Reindel said any decision about filing a legal challenge would be made after the final rule is published.

Logical Outgrowth

The Biden-era heat proposal would require employers to provide workers with water and shaded rest areas once temperatures reach 80 degrees and mandatory 15-minute rest breaks at least every two hours. It also would mandate increased monitoring once it reaches 90 degrees.

The business community has complained that the measure is unnecessarily broad and imposes excessively burdensome requirements, like a 20% acclimatization period that aims to protect new or returning workers who are not accustomed to high heat.

Any challenge asserting an Administrative Procedure Act logical outgrowth claim would seek to invalidate the final standard and force OSHA to start the notice-and-comment process over.

The doctrine ensures agencies don’t introduce major changes without notice by requiring that final rules follow logically from the initial proposal and the feedback given.

It has been invoked several times over the years in court challenges to OSHA rulemaking, but few decisions have been issued, according to Alana Genderson, a partner at Sidley Austin LLP.

The US Court of Appeals for the Eleventh Circuit determined in a 1999 decision that OSHA’s revised respiratory protection standard was a logical outgrowth of a proposed regulation after doctors argued the agency failed to notify stakeholders that it would eliminate a safety provision in its final standard.

More recently, the District of Columbia Circuit sided with the agency in 2014 when it dismissed a challenge by the grain industry against OSHA’s inclusion of combustible dust in a final Hazard Communication Standard. The appeals court held that OSHA provided sufficient notice and comment.

Both decisions show how OSHA has successfully defended the adequacy of its notice in rulemaking under the APA’s logical outgrowth standard. There hasn’t been a major OSHA case where a court struck down a rule solely because it failed the logical outgrowth test.

“At the end of the day, any rulemaking on heat is bound to be controversial—there are passionate voices on all sides of this,” said Genderson. “Whether OSHA stays the course or overhauls the rule entirely, lawsuits claiming rulemaking deficiencies are highly likely.”

Political Hurdles

OSHA is also navigating a complex web of political and budgetary constraints that could impact its heat rule.

More than a dozen Republican senators, including Bill Cassidy (R-La.), urged the Labor Department on Wednesday to abandon the Biden-era heat proposal altogether.

“Protecting workers from a common and easily understandable workplace hazard does not require a prescriptive rule that will cause confusion and, in several circumstances, may even undermine worker safety,” the GOP senators wrote. “Workers and business thrive when there are clear standards that are flexible, understandable, and pragmatic.”

Congress also cut the Department of Labor’s enforcement budget by $13 million. OSHA saw a nearly 12% decrease for funding to safety and health standards, Schauer said.

On top of those cuts the agency will also need to juggle the White House’s push to deregulate.

“The chances that we will see a heat standard out of OSHA any time soon, that it will look like the proposed rule if we do, or if adopted will survive judicial scrutiny, are similar to those of a snowball in temperatures above 90 degrees,” Schauer added.