Public Comment Alert for Contractors and Construction Business Owners Immediate Action Needed

The New Mexico Environment Department NMED, Occupational Health and Safety Bureau (OHSB) initiated the rule making process to promulgate a New Mexico Heat Illness and Injury Prevention rule. OHSB drafted of the Heat Illness and Injury Prevention rule that is open for public comment and petitioned the Environmental Improvement Board (EIB) for a hearing on adoption of the rule.

Senator Townsend sent a brief requests public comment from New Mexico small business owners.The concern is that a proposed OSHA Heat Standard would establish new requirements that may be problematic for New Mexico construction, plumbing, paving, electrical, and contracting companies.

The proponents argue that physical exertion in high heat conditions is a known workplace hazard that can result in heat exhaustion and heat stroke as well as long term conditions such as heart and kidney damage, neurological dysfunction, and death. The hazards of work in high heat environments can often be abated by relatively simple practices such as increased rest periods, provision of shade, and having adequate drinking water available to workers. There is currently no rule or federal standard addressing heat exposure in the workplace.

The Federal Occupational Safety and Health Administration (OSHA) has recognized heat in the workplace as a known hazard, and in 2022 issued a National Emphasis Program (NEP) to address and further study heat illnesses and injuries in the workplace. OHSB adopted the OSHA’s Heat NEP in April of 2023. Federal OSHA published a draft Heat Illness and Injury Standard, which is in the rule making process, but it is unclear when the new standard may be adopted.

Opponents and legal scholars argue:  

The New Mexico Environment Department’s Occupational Health and Safety Bureauproposed a Heat Illness and Injury Prevention (HIIP) rule with a contemplated effective date of July 1, 2025, if adopted, the HIIP rule will require New Mexico employers to implement policies and procedures designed to protect employees against heat hazards in the workplace. Required measures would include implementation of a written HIIP Plan, heat exposure assessments, control measures, training, and record keeping. If the rule is adopted, New Mexico would join California, Colorado, Maryland, Minnesota, Nevada, Oregon, and Washington, which have each enacted heat illness prevention measures, though they are vague and vary in scope and application.

Scope

The proposed HIIP rule would apply to indoor and outdoor places of employment, providing exemptions for incidental heat exposure, emergency response operations, telework, and work environments with mechanical ventilation that keeps the heat index in work areas below 80°. This is not practical for construction businesses.

Written HIIP Plan

The proposed HIIP rule would require employers to maintain a burdensome written HIIP Plan at worksites (available in English and “the language understood by the majority of the employees”) containing information and procedures addressing heat assessment, implementation of control measures generally and in high-heat conditions in particular, acclimatization methods and schedules, indoor heat requirements, emergency medical care, and training methods.

The rule that NMED proposed to the EIB is alledged to provide the OHSB with the tools necessary to assist New Mexico employers in keeping their workforce safe from heat related illnesses and injuries. The rule will also provides a burdensome regulatory framework to hold employers accountable, if they fail to protect workers from known hazards such as heat, including the authority to prevent employers from exposing workers to conditions which pose an imminent danger. This wording is dangerous to small business owners especially in desert climates and areas of increased heat due to climate change.

Those who opposed the rule say it will increase costs of service significantly and that the state should provide “guidelines, not regulations.”

Opponents further say employers should use common sense along with industry-specific knowledge and training to protect workers from heat-related illness and injury.

Time is limited and thus local businesses should brush up on the proposed rule and request NMED to POSTPONE implementation and seek a more collaborative approach to include input from impacted business owners.

Public comment is scheduled to close on May 30 at 5:00 p.m. If New Mexico businesses have specific concerns, please consider submitting information to the public portal: Public Comment Portal. 

For additional background on the proposed rule, please visit NMED's Occupational Health & Safety Bureau website at: Proposed HEAT Rule.

On the surface the rule sounds noninvasive however digging into the details add yet another layer of government interference in the workplace that would further negatively impact small business and minority operated small construction companies.

For more information on the rule, click on the following link:

https://urldefense.proofpoint.com/v2/url?u=https-3A__www.federalregister.gov_d_2024-2D14824_p-2D7&d=DwMF-g&c=6z-0Uq7S3p-OhbcSZDlDuw&r=jGF2r40h-FWZSPHlr9qO2AL_sVrpsrSoZRTwekRulw0&m=pb_Zt40FkM369uDLG-6REiinFBU0FBBXpE0QFbO0wkGTLf5shHs7STKx8ZemT-cs&s=CpDXjpOjEyV_R947586iLFarWsYrExG06fqqa9T0YSw&e=

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