WASHINGTON, D.C. — June 26, 2025 — The fate of OSHA’s proposed heat illness rule remains uncertain, but recent public hearings suggest the regulation may not be scrapped altogether. Instead, it may be significantly revised into a more flexible, performance-based standard.

When President Donald Trump returned to office earlier this year, many industry stakeholders assumed that the Biden-era heat rule — which mandated strict thresholds for rest, hydration, and acclimatization — would be shelved. But according to testimony during ongoing public hearings, OSHA is considering a more moderate approach.

“We all thought that when the administration changed, the heat rule was going to die,” said Jason Mills, an OSHA litigation attorney at Sidley Austin. “And then the administration took a little bit of an unexpected turn with this choice [of Lori Chavez-DeRemer] for the secretary of labor. And it turns out that there’s both union support and I think business support pulling in both directions now.”

Chavez-DeRemer, a former Republican congresswoman from Oregon, has maintained a surprisingly balanced relationship with organized labor. Her previous support for pro-union legislation like the PRO Act has made her a palatable choice to both political sides in the OSHA debate.

On the first day of the hearings, OSHA officials repeatedly used conditional language about the rule’s future. “On the first day of hearings OSHA went out of its way to say ‘if’ the rule should continue through rulemaking, ‘if’ the rulemaking continues,” said Alana Genderson, a partner at Sidley Austin. “So they’re giving themselves the option to stop. But I think they are receiving pressure both from labor organizers but also from businesses.”

The original draft of the rule, published during the Biden administration, included detailed requirements for rest breaks, clean water access, and acclimatization schedules. It triggered pushback from contractors who felt the rigid, one-size-fits-all approach ignored regional differences and overregulated companies that already maintain comprehensive safety protocols.

“It was so detailed and so over the top in terms of the microregulation that even employers with robust, detailed, best-ever-on-the-planet heat illness and prevention programs could be cited,” said Phillip Russell, an employment attorney at Ogletree Deakins.

Industry leaders such as the Associated General Contractors of America have voiced similar concerns. “We have been pretty outspoken in raising concerns that the rule initially proposed during the Biden administration is flawed in attempting to create a single, nationwide heat threshold,” said Brian Turmail, vice president of public affairs and workforce for the AGC. “Mid-80s in Jackson in June is a cold front, whereas it prompts heat warnings in Fairbanks. Any final rule should take into account local weather patterns.”

Still, unions and labor advocates continue to urge the agency to keep key safety elements from the Biden-era version. During the June 18 session, Chris Cain, director of safety and health for North America’s Building Trades Unions, stated: “I don’t know ultimately what OSHA should do as long as it’s protective. However, contractors in our experience really like specification-based standards so that they have a way to determine that they’re in compliance with the rule.”

As a compromise, many experts now expect OSHA to move toward a performance-based model, which gives contractors flexibility in meeting safety goals without prescribing exactly how.

“I think a performance-based standard would be more appropriate,” said Russell. “Have contractors do an assessment, indoor or outdoor, and implement appropriate measures for the workplace to keep workers safe from heat.”

While the final rule remains in flux, OSHA is still enforcing heat safety through its general duty clause, requiring employers to provide safe workplaces. That leaves contractors with broad discretion, but also ambiguity.

“Right now, there’s nothing new to do because OSHA is enforcing under the general duty clause,” said Mills. “So I would go back to the OSHA guidance, which is shade, water, rest.”

Even without a formal rule, the Biden administration’s proposal has had a lasting impact, offering employers a roadmap for best practices. “You now have a roadmap of the most aggressive version of OSHA,” Genderson said. “Here’s their rule. So you should look at it and sort of take bits and pieces. You don’t have to adopt it wholesale, but at least that’s a good guide.”

With seven states already enforcing their own heat illness prevention rules — and 16 more considering proposals — national contractors are closely watching OSHA’s next move. Genderson noted there’s a possibility OSHA could “dice up” the regulation by region to better reflect local climate risks, but so far, no formal national standard has been set.

Originally reported by Zachary Phillips in Construction Dive.