On April 1, the New Mexico Occupational Health and Safety Bureau (OHSB), a division of the New Mexico Environment Department (NMED), opened public comment on a proposed heat illness and injury prevention rule.
If New Mexico’s proposal becomes final, it would join state heat illness prevention rules in California, Minnesota, Nevada, Oregon, and Washington. Minnesota’s rule also covers exposure to cold temperatures. Nevada adopted its heat illness regulation last fall.
The 60-day public comment period for the New Mexico proposal closes May 30.
According to the OHSB, physical exertion in high-heat conditions is a recognized workplace hazard that can lead to heat exhaustion or heatstroke, as well as long-term conditions like heart and kidney damage, neurological dysfunction, and death. The bureau suggested that methods of abating high-heat hazards include increased rest periods, shade, and adequate available drinking water.
Like other state heat illness prevention program regulations, New Mexico’s proposed rule would require employers in the state to establish, implement, and maintain prevention programs. Requirements of the rule would apply in both indoor and outdoor workplaces and would require employers to provide fluids, regular rest breaks, and cooling areas.
It also would require acclimatization periods of gradually increasing heat exposures, enabling workers to adapt to high-heat work environments, as well as contain emergency medical care, recordkeeping, and worker and supervisor training requirements.
Like California, Minnesota, Nevada, Oregon, and Washington, New Mexico has an Occupational Safety and Health Administration (OSHA)-approved state workplace health and safety program. Under the Occupational Safety and Health (OSH) Act, state health and safety standards must be “at least as effective” as federal standards.
However, there’s no federal heat illness and injury prevention program standard. Last summer, OSHA proposed a new heat injury and illness prevention standard requiring employers to provide water, shade, paid rest breaks, heat-acclimatization schedules, and training.
Because there currently is no federal standard for heat illness and injury prevention, OSHA cites employers, often following a worker hospitalization or fatality, using its authority under the General Duty Clause (Section 5(a)(1)) of the OSH Act.
The Occupational Safety and Health Review Commission has frequently vacated OSHA’s General Duty Clause citations. In 2023, it vacated four OSHA citations of the U.S. Postal Service (USPS) for letter carriers’ exposure to excessive heat in Benton, Arkansas; Houston and San Antonio, Texas; and Martinsburg, West Virginia. In 2019, the review commission vacated another heat-related violation, calling OSHA’s reliance on the General Duty Clause a “gotcha” or “catchall” for hazards with no established standards.
In 2022, OSHA launched an indoor and outdoor heat-related hazards National Emphasis Program (NEP), which New Mexico’s OHSB adopted in April 2023. The NEP targets industries in the agricultural, construction, and manufacturing sectors, as well as automobile dealerships, postal service, and freight and rail transportation. However, the NEP exempts farming operations with 10 or fewer employees.