A new Emergency Response Standard (ERS) has been proposed by the Occupational Safety and Health Administration (OSHA) to impose additional requirements on organizations with employees who respond to workplace incidents, even as a secondary aspect of their work duties. Employers to be covered include manufacturers, warehouses, construction companies, retailers and others employing workers designated to respond to emergencies.
“If the proposed rule is adopted, the impact on subject employers will be massive and compliance difficult,” declared John D. Surma, an attorney with the law firm of Ogletree Deakins. “Most of the providers of the sort of services covered by the proposed standard are private employers that augment services provided by public or quasi-public providers. With the potential exception of the COVID-19 standards OSHA created, no other proposal for a change in OSHA standards in recent memory has been as comprehensive as these changes.”
The rulemaking proposal is designed to expand and replace OSHA’s current Fire Brigades Standard, which could easily create the misimpression that the new standard also will apply primarily to governmental emergency responders, note attorneys who work for the law firm of Jackson Lewis. “The proposed rule may sound like it would apply only to municipal entities, but it would cover a broad range of public and private workplaces, as well as volunteer emergency responders.”
OSHA estimates the proposed rule will affect 22,552 emergency service organizations and workplace emergency response teams and more than 1.1 million first responders. Any organization that employs first responders or supports a trained internal emergency response team will need to adhere to new training and preparedness requirements, assuming that the proposed rule is adopted in its present form.
First issued in 1980, OSHA’s current Fire Brigades Standard established a set of detailed regulations for employers that maintain their own fire brigade. A fire brigade is defined as an organized group of employees who are knowledgeable, trained and skilled in firefighting operations, including traditional volunteer fire departments.
Under the 44-year-old standard, this kind of employer must define their fire brigade’s structure, provide education and training to the brigade’s members, and in some circumstances be willing to supply them with protective clothing. However, some other workplace emergency responders are not included in the Fire Brigades Standard.
The proposal incorporates by reference 22 standards that have been created by the National Fire Protection Association (NFPA), most of which are focused on firefighting training, personal protective equipment (PPE), health and safety requirements, and firefighting apparatus. “Though the standard relates to other types of emergency response, much of it does so with a strong firefighting influence,” Surma says.
In addition, the proposed OSHA rule would expand its authority over categories of employees beyond those who are directly involved in firefighting operations. If it is eventually adopted, among those who are also covered by it would be employees charged with performing emergency medical services (EMS) and technical search and rescue (TSAR) operations.
Expansive List of Employees
Also included in the rule’s jurisdiction would be two other job categories of employees. One is Emergency Service Organization (ESO) workers who provide one or more functions such as firefighting, Emergency Medical Services (EMS), and urban search and rescue as a “primary function” of their work responsibilities.
Also encompassed by the proposed rule would be a Workplace Emergency Response Employer (WERE). This is defined as an employer with a Workplace Emergency Response Team (WERT) consisting of employees who, as a collateral duty to their regular daily work assignments, respond to emergency incidents to provide one or more firefighting, EMS and TSAR services.
There is one notable exception to this wide-ranging collection of workers, the Jackson Lewis attorneys point out. OSHA’s proposed Emergency Response Standard specifically excludes employers “performing disaster site clean-up or recovery duties.”
In all, the impacted employees would include:
- Firefighters employed at private employer facilities (full-time firefighters at oil and gas facilities).
- Privately employed EMS personnel.
- Privately employed technical rescue workers.
- State and local government first responders in state plan states.
- Federal firefighters and emergency responders (law enforcement agencies are not covered by the proposed rule).
- Employees trained to provide emergency response (EMS, fire or rescue services) as a secondary responsibility. This includes facility emergency teams if they are called upon to provide care beyond the limits of first aid.
Limits of Authority
Surma also raises serious questions about the extent of OSHA’s legal authority with regard to certain portions of the proposed standard, such as those related to vehicle preparedness and operational requirements.
“On-road vehicle design has never been subject to OSHA oversight and traditionally has fallen under the U.S. Department of Transportation’s and/or the National Highway Traffic Safety Administration’s jurisdiction,” he notes. “However, the OSHA-proposed standard would require compliance with standards created by OSHA, as well as those established by the NFPA.”
Similarly, on-road vehicle operation has never been subject to OSHA regulation, but this proposed standard would do so in regard to emergency response vehicles. “Depending on how OSHA applies the standard, it even goes as far as to the personal vehicles operated by volunteer fire fighters or emergency medical responders who use their own vehicles to respond to emergencies,” Surma contends.
Another area of potential overreach deals with regulating emergency responders’ mental and physical health status, which can be especially problematic when it comes to volunteer firefighters.
“Nearly 80% of paramedics self-reported being overweight or obese, according to a 2015 study cited by OSHA in the proposed rule, and for many years there have been shortages of emergency medical service employees, yet the proposed standard calls for the creation of minimum medical requirements commensurate with the requirements of the position, ongoing medical evaluations, and fitness programs,” Surma says.
In addition, there are no exceptions for provider disability or age contained within the standard, he adds. “Moreover, mental health services would have to be provided (though they can be provided through community-based resources) to providers engaged in ‘potentially traumatic events.’”
Most of the providers of the sort of services covered by the proposed standard are private employers that augment services provided by public or quasi-public providers, which vastly expands the number and kind of workers who would be inevitably drawn under the regulation’s umbrella, Surma points out.
“While the proposed standard, if adopted, would require the creation of mutual aid agreements for a number of reasons, the efforts to negotiate those agreements will be influenced considerably by the fact that the public and quasi-public entities are not compelled to do so. Private entities providing services in the same communities may allow competition to serve as barriers to creating such agreements.”
The Jackson Lewis attorneys urge employers in the public and private sector who can expect to come under the jurisdiction of these standards to review their departmental practices, trainings, certifications and credentialing to ensure they are up to date with Federal Emergency Management Agency and NFPA requirements. This is best way to prepare due to the fact that “the proposed rule creates a plethora of novel plans and policies employers of emergency responders must have in place,” they stress.
