Psychology

You have been working on the transaction for months.  The business has gotten healthy with great valuation increase.  Now is the time to get it across the finish line.  Then… The owner struggles with the emotions of relinquishing the business. The owner gets overwhelmed with the process and gets cold feet. The owner’s health starts to decline changing the parameters of the sale. The owner’s spouse or child has an emergency or health crisis distracting from the final steps of the sale. The owner backs out due to fear of how to stay relevant and influential without the business. In the past most of the emphasis has been on financial planning and finance-related goals.   When you have an expert on your team focused on the Wellness Portfolio alongside the owner’s financial and the business’s M&A portfolio, these delays are prevented and addressed.

There’s an old joke about a couple who were celebrating their 50th anniversary. When asked about the secret to their long marriage the husband replied, “when we got married, we made a pact that no matter what happens, we would always go out twice a week.” His wife nodded in agreement. He then added, “We never missed a week. I went out on Mondays and Wednesdays, and she went out on Tuesdays and Thursdays.” Perhaps you have your own secret to a long and happy life together, but the reality is that retiring as a couple can pose challenges, both with regard to doing the planning and to actually implementing your plan. And plan you should, for there might be a lot of togetherness ahead. Maybe you’ve spent two or three weeks on vacation with your other half in the past, but we’re talking about (potentially) decades here. The Skipton Building Society is a financial services organization in the U.K. They conducted a poll about retirement in 2013 and found that 8 in 10 retirees said they no longer shared any of their spouse or partner’s hobbies or interests, while 29 percent they didn’t have same expectations for retirement as their other half. Our early family experiences can shape those expectations. For example, imagine that your father had few hobbies or interests outside of work, and after retiring he spent most of his time at home driving your mom crazy. It’s understandable that you would be wary about the same thing happening in your relationship. The retirement transition isn’t always easy, and in some cases, it can lead to an unfortunate outcome. Divorce rates in the United States are declining — except for people over 50. Twenty years ago, just one in 10 spouses who split were age 50 or older; today, it is one in four.  Couples who have historically avoided conflict may resist talking about retirement, which delays planning and can lead to rushed decisions. And couples who have not resolved past conflicts may repeat them, disrupting the planning process. But by recognizing the typical challenges surrounding retirement, you’ll be less apt to be alarmed by them, shy away from them, or view them as sign that your relationship is in trouble. Your retirement decisions and planning will likely revolve around two broad questions: WHEN will you begin the transition, and WHAT do you want it to look like and feel like as it unfolds? WHEN will you begin the transition?  Some people launch into retirement abruptly while others adopt a gradual path, but you still need to decide whether the process starts 3 months from now or 3 years from now. Will you retire separately or together, and how does that impact your timing? I was curious about how people actually decided to retire, so I conducted interviews and compiled a dozen personal stories into a short book called Done With Work. My respondents spoke of the internal thoughts and feelings that propelled them to retire, as well as the external circumstances at play. They typically decided to retire when there was convergence between the internal and external factors. They felt psychologically ready to retire, and their external circumstances supported their doing so. WHAT do you want retirement to look like and feel like?   There are many decisions you will need to make as a couple. For example, where will you live? What are you each looking for in terms of climate, type of community, type of residence, and so forth?  How do you anticipate spending your time, and how much time will you spend together?  How have you negotiated such matters in the past?  Family As you enter this transition, you may need to consider certain family relationships. For example, as a couple you might have older adult parents to care for. They may have differing needs, and you and your partner may have a different relationship with your respective parents, a different perspective on caregiving, different sibling involvement and so forth. Perhaps you have children, stepchildren, and/or grandchildren. Here too there are numerous circumstances that could potentially require honest conversation, healthy debate, lots of good faith effort, and perhaps a negotiated compromise. Money Money is another area that couples need to consider. By this point in life you probably have a sense of where and how you diverge when it comes to spending priorities and your approach to money. But the stakes can feel much higher knowing that you may live for decades on a fixed income. Your financial advisor likely has resources to help you have productive discussions about money and can suggest ways to reach a workable compromise. For example, if you’re very cautious about money and your partner tends to spend more freely, you could agree to adopt your partner’s style when it comes to smaller expenses but employ your prudent approach when it comes to big ticket items. Communication All of the decisions you need to make will require some degree of discussion, exploration, negotiation, and the like. As with other transitions in your life together, this one requires solid communication.  Roberta Taylor and Dorian Mintzer wrote a terrific book called The Couple’s Retirement Puzzle: 10 Must-Have Conversations for Creating an Amazing New Life Together. They wisely note that just because you’ve been together a long time doesn’t necessarily mean you can read each other’s minds. One barrier to effective communication is that fear gets in the way. One or both parties may avoid discussing an issue because they’re afraid of opening a “Pandora’s Box”. Some fears are realistic and give us warning about what we ought to be paying attention to. But Taylor and Mintzer note that other fears may be “related to a lack of information or an overreaction based on past experience.” And as noted cognitive therapist Robert Leahy says, “sometimes the disagreement we envision in our head is worse than what actually occurs.”  It’s rare for couples to always be on the exact same page. Disagreements are often due to differences of opinion, differences in your approach to problem-solving, or differences in your decision-making style. Those differences can obscure the fact that in reality you may be in greater agreement than you think. Stylistic differences can also hamper communication. Recognize them for what they are, but don’t conclude that they reflect character flaws.  Your husband isn’t necessarily uncaring because he doesn’t like talking about the future.  Your wife isn’t necessarily neurotic because she likes to talk about what’s troubling her.  The conversation is less apt to derail if you can remember that the friction you’re feeling is probably more related to style than to substance. Even if you’re unable to agree on something you both want (e.g. where you want to live), can you reach agreement on things you don’t want?  It can reduce tension if you reassure your partner that you won’t push for something that they feel is unacceptable. Individual Development Although it is important to plan together, you both need to figure out your own path as well. A very common concern involves identity. Who am I if my role changes, if I’m no longer a physician, a manager, a teacher? As Taylor and Mintzer wisely point out, “if one partner is dealing with issues of identity, chances are it affects both of you.” One of my professors, the late gero-psychologist David Gutmann discovered that with age, it’s not unusual for long-dormant aspects of our personality to emerge. For example, one member of a couple might wonder, “now that I no longer have to be the hard charging businessperson, can I also embrace the nurturing side that I had previously disavowed?”  Will your relationship flexibly accommodate such a shift if it appears? Look to Your Past Retirement is a transition, and as a couple you should consider how you’ve each dealt with past transitions. Do you deal with them differently (e.g. speed through vs. tolerate the journey) and how did you manage to support one another during the process? Thinking about how you navigated those inflection points.  Did you learn anything about yourself or your other half?  Past transitions can shed light on strengths that you can then apply to this one. For couples contemplating retirement, planning your next chapter can feel complicated. The good news is that you don’t have to do it alone. Your financial advisor has helped many other people just like you sort through the head and heart side of retirement. In the unlikely event that you reach an impasse, they should also be able to refer you to counselors who specialize in assisting couples who are going through this transition.

Stress. You know the feeling, the drop or churning in your stomach, the sweaty palms, the flushing of the face. Full-on signs that something or someone has just sent you on a path of worry, frustration, fear, or panic. While not always appreciated, our bodies send us instantaneous signals of our state of being. The trouble with these reactions is that they served us well when we needed to outrun the saber tooth tiger. Most of us are not living in that environment today, yet our brains have not evolved with our change in circumstances. The outsized reaction is referred to as an Amygdala highjack. This is where Adam Smith’s wisdom can help us evolve beyond our caveman days. But we have to get to that place to step outside ourselves. How do we do that?

There is something I’ve noticed when people tell me about their first year of retirement.  Occasionally they will mention adjusting to living on a fixed income, but more often it’s the non-financial side of things that occupies their mind. In some instances they sound pleased. For example, they’re eager to talk about new hobbies, interests, or educational pursuits. In other cases, they’re more negative. They’re feeling unsettled in a new home, unmoored without their former routine, or unhappy with how they’re spending their days. The financial services industry has done much to educate Americans about saving for retirement.  Sound fiscal preparation is essential, but we also need to prepare ourselves for the head and heart side of this transition.  Preparing ourselves psychologically is challenging, in part because unlike financial planning, there is very little “hard” data.  Instead, we’re asked to consider subjective factors like beliefs, emotions, values, and the like. There are many things we tell ourselves that prevent us from doing this important psychological work.  Here are five things I hear quite often: I’ll figure it out when the time comes. You’ve never had a hard time deciding what to do on weekends and vacations, and you have a long list of interests you intend to explore once your time is your own. It’s great that you’re able to occupy yourself, but we’re not talking about two days or two weeks here.  Depending on your health your retirement may be measured in decades; you need to plan accordingly.  Similarly, the list of interests you hope to explore could be insufficient if it’s not fully thought through.  For example, becoming fluent in Spanish might be something that you always wanted to do and it might help keep your mind sharp, but are you really willing to put in the effort?  Playing golf several times per week may sound appealing and for some people it’s quite satisfying, but others find after a while that it falls short, failing to fuel their sense of purpose. I’ll become a part time consultant, so I don’t need to think about retirement. People over 50 are more entrepreneurial than is commonly believed.  Rather than retiring, many opt to start a consulting business based on their decades of experience.  On paper it certainly makes sense. They still have industry contacts, their knowledge is encyclopedic, and they’re keen to continue working.  I’ve met lots of people who successfully made this transition late in their career, but I’ve met just as many who struggled. Most of them were talented, decent, and hard-working, but they vastly underestimated the headwinds they would face striking out on their own. True, they had industry contacts, but many no longer wielded the influence they once did.  They counted on known referral sources, but age bias led some of those sources to look elsewhere. They were experts in their field, but it didn’t guarantee that prospective clients would beat a path to their door.  I’m not suggesting that consulting isn’t an option, but it requires an extremely clear-eyed assessment of your strengths, limitations, and the marketplace. I love my work and have no intention of stopping. Good for you, but I respectfully suggest that life has a way of throwing us curveballs as well as unexpected opportunities, so you might want to have a Plan-B.  What if you receive an unsolicited yet compelling offer for your business?  What if the firm you work for is purchased by a competitor that wants to clean house?  What if your health suddenly declines?  The point is, even if you want to keep working you may change your mind or life might change it for you.  Giving some serious thought to how you could enjoy life beyond work can provide you with greater flexibility and help you adapt if your next chapter is different than what you thought it would be. My father retired and within a year he got sick. There is no doubt that our family history can significantly influence the decisions that we make.  Many of my clients have shared how a relative’s experience with retirement affected their own beliefs and feelings about leaving work. Watching a parent or grandparent suffer in retirement can have a profound and lasting impact. That can’t be denied, but it’s important to remember that this doesn’t have to be your mother’s or grandfather’s retirement.  With some thoughtful planning you may have far more options than they did and more time to enjoy them. None of my friends who retired gave it much thought and they seem to be doing just fine. It’s possible that some of your friends moved smoothly into retirement without preparing for it psychologically, but your assertion could be mistaken.  First of all, getting oneself emotionally ready for this transition is typically a private process, so it’s unlikely you can ever really know exactly how much thought your friends put into it.  Secondly, your sense that they are doing fine may be clouded, either by their effort to portray themselves in a good light and/or your desire to see them that way. We tell ourselves these things not just because we believe them, but because they help us avoid the hard work of emotionally preparing ourselves for what could be the biggest transition in our life.  If you want to avoid feeling bored, aimless, unproductive, or dissatisfied, your retirement planning needs to include psychological preparation.

Seventh article in a series . . . If you work as a business advisor, you know that engagements can be unpredictable.  Whether helping the owner take advantage of a changing marketplace, or optimizing the business to prepare it for sale, these initiatives typically involve significant planning, coordination, and effort from both advisors and their clients.  Despite the best of intentions, these large-scale projects don’t always proceed smoothly. There are many things that can affect the advisor-client relationship and make it harder for clients to accomplish the tasks associated with the project.  This article is the seventh in a series highlighting matters that should be considered by advisors and clients before they agree to work together. “If I would have listened to the naysayers, I would still be in the Austrian Alps yodeling” – Arnold Schwarzennegger As an advisor, most of your interactions will be solely with the business owner unless the project intentionally involves other staff.  In some cases, the owner may even ask you to act on their behalf; for example, you may be asked to identify and screen high level job candidates.  But no matter how the project is structured, there will likely be other stakeholders who have opinions, needs, and priorities that differ from those of your client. Consider the case of Kevin, who built a business providing damage restoration and clean-up services for residential customers.  His 10-person crew operated out of 5 trucks.  Kevin wanted to expand into two adjacent counties to take advantage of their rapid growth in population.  His  advisor suggested that he solicit commercial accounts, even though doing so would require additional skills and credentialing for his staff. Kevin was excited about the prospect of gaining new clients.  He told his team that the advisor would help identify potential commercial customers and determine what specific remediation services they might need.  The next day Kevin’s Service Manager asked to speak with him.  He was concerned that handling commercial accounts could be complicated and potentially unsafe and he didn’t think the current crew would be able to master the specialized training needed to address chemical spills and hazardous waste clean-up.  Kevin was more optimistic than his Service Manager, but he was worried about creating ill will and he didn’t want to provoke a power struggle over the issue.  He told his advisor the growth strategy would need to focus solely on the residential market. Change, even that which is well-conceived and communicated, is not always welcome by those affected by it.  Clients like Kevin are vulnerable to objections raised by others, which can undo hours if not weeks of planning.  His advisor might have seen evidence of Kevin’s vulnerability if he had explored this early on by saying, “Kevin, tell me about a business situation where you had to make a tough choice.  For example, letting go of someone even though it was difficult, or choosing an option that displeased an important stakeholder.” Even if a client appears confident in their ability to secure the backing of stakeholders, the advisor should review various scenarios with them beforehand.  The advisor might introduce the topic by saying, “If our work leads to new initiatives or even modest changes in your operations, it’s possible there could be some pushback.  As the project unfolds, we should schedule time periodically to discuss the best way to communicate changes, and plan how to respond to any stakeholder objections.” This doesn’t mean that stakeholder objections are to be viewed as obstacles or irritants.  To the contrary, advisors should help clients give strategic thought and consideration to potential stakeholder concerns and adjust their planning accordingly.  For example, in the scenario above, Kevin’s advisor should have thought about how his recommendation might impact the staff.  He might have then proposed an incremental approach to staff training and service roll-out. This is the seventh in a weekly article series titled “Assessing the Advisor-Client Relationship”.  Each week, I will explore a new element affecting the advisor-client relationship in some detail.  These articles will help you understand potential opportunities and obstacles when working on long-term strategic engagements.  The next article will explore the client’s sense of self-efficacy. Please feel free to reach out for more information or assistance proactively assessing the potential advisory relationship.

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  COREnology is the first behavioral finance tool developed to help advisors identify, track and grow clients’ core values, beliefs and goals.   Soon after David York and Andrew Howell started their estate planning law firm they noticed a glaring disconnect between what mattered most to their clients’ and how their clients were managing their wealth. Families were preparing wealth for their children, but were not preparing their children to have wealth.  They knew how to gain wealth, but not how to be wealthy. When David and Andrew looked at the families that were successful at growing and transferring their wealth, they noticed some consistent trends. These families knew: Who they were What they valued What they believed Together David and Andrew wrote a book titled “

You have been working on the transaction for months.  The business has gotten healthy with great valuation increase.  Now is the time to get it across the finish line.  Then… The owner struggles with the emotions of relinquishing the business. The owner gets overwhelmed with the process and gets cold feet. The owner’s health starts to decline changing the parameters of the sale. The owner’s spouse or child has an emergency or health crisis distracting from the final steps of the sale. The owner backs out due to fear of how to stay relevant and influential without the business. In the past most of the emphasis has been on financial planning and finance-related goals.   When you have an expert on your team focused on the Wellness Portfolio alongside the owner’s financial and the business’s M&A portfolio, these delays are prevented and addressed.

Qualified Small Business Stock is a type of stock that includes immense tax relief for investors. Those benefits serve to stimulate investment in small businesses by mitigating the tax consequences that attach to their returns. Below is an article that discusses the definition of QSBS, the relevant IRC section at play, the tax benefits flowing from QSBS, the standards for obtaining QSBS, and the costs and importance involved in gaining a QSBS certification. What is Qualified Small Business Stock? Qualified Small Business Stock is that class of stock issued by a small C corporation that meets specific qualifications specified in the Internal Revenue Code. It enables the investor in QSBS to exclude from federal income taxation up to 100% of the capital gain realized upon the sale of such stock, provided certain requirements are met. The provision is meant to incentivize investment in startups and small businesses as a means of promoting innovation and driving economic growth. Governing Section of the Internal Revenue Code Treatment of QSBS is given under Section 1202 of the Internal Revenue Code. This section was enacted as part of the Revenue Reconciliation Act of 1993 and has undergone several amendments to expand the benefits available to investors. Section 1202 outlines those requirements that must be satisfied for stock to qualify as QSBS, along with particular tax benefits available to the investors. Examples of Qualified Small Business Stock Tax Benefits Investing in QSBS offers substantial benefits in terms of tax. Example: Exclusion of Capital Gains: Depending on when the QSBS was acquired, up to 100% of the capital gains from the sale of QSBS can be excluded from federal income tax. The exclusion percentages are as follows: 50% of the stock acquired from August 11, 1993 to February 17, 2009. 75% for stock acquired between February 18, 2009 and September 27, 2010. 100% for stock acquired after September 27, 2010. Limitation on Gain: The amount of gain to be excluded is limited to the greater of $10 million or ten times the adjusted basis in the stock. The generous cap allows for significant tax savings by investors. The Alternative Minimum Tax (AMT) stipulates that gains exempted under Section 1202 do not qualify as preference items for the purposes of AMT, potentially offering supplementary tax relief. State Tax Benefits: Some states follow federal QSBS exclusion rules, giving additional state tax benefits. Investors should check the particular rules of the state pertaining to QSBS. How to Meet the QSBS Requirements To qualify for QSBS treatment, certain requirements must be met: Qualified Small Business: The issuing corporation must be a domestic C-corporation and it must meet the definition of a “qualified small business.” A qualified small business is one in which the corporation’s aggregate gross assets do not exceed $50 million at any time before and immediately after the issuance of the stock. Active Business Requirement: During at least 80% of the period the investment is held, assets of the corporation must be used in the active conduct of one or more qualified trades or businesses. The following types of businesses specifically do not qualify:. The stock must be obtained directly from the corporation when the stock is originally issued, in exchange for money, other property but not stock, or as compensation for services. Holding Period: The investor must hold the QSBS for more than five years to qualify under the capital gains exclusion. These requirements are often complex to navigate, and guidance is usually sought from a tax specialist to ensure compliance with the law. What is a Qualified Small Business Stock Attestation? A Qualified Small Business Stock Attestation is the declaration of a corporation; a formal statement that the stock of the particular corporation meets all the qualifications necessary for the classification to be deemed a QSBS under Section 1202 of the Internal Revenue Code. This certification gives assurance of qualification both to investors and the tax authorities, confirming the eligibility for the tax advantages to the owners. Importance and Cost of a Qualified Small Business Stock Attestation Investor Confidence: It enhances investor confidence because the attestation is basically a documented proof that the stock is qualified for favorable tax treatment; thus, making it more attractive to prospective investors. Tax Compliance: An attestation plays a crucial role in confirming adherence to tax regulations and can promote more efficient engagement with tax authorities. It functions as proof that the corporation satisfies the QSBS requirements, which may streamline the tax reporting procedure. Risk Mitigation: The attestation works by giving a risk mitigation of disputes or challenges in the future that may develop in the mind of the IRS about the stock’s QSBS status. Cost The costs for obtaining a QSBS certification will depend on many factors, such as the extent of complexity of the company’s organizational structure and how much any given professional services company charges for providing the certification. In most cases, the costs range between several thousand to tens of thousands of dollars. Regardless of the monetary investment, the tax advantages likely to be gained for the backers, coupled with increased certainty of conformity, could make the expense a wise investment. Conclusion Qualified Small Business Stock provides substantial tax advantages to investors in the interest of enabling small businesses to energize the economy. Controlled by Section 1202 of the Internal Revenue Code, QSBS enables considerable exclusions from federal income taxation of capital gains. However, fulfilling these requirements can be tricky, and the ability to get a QSBS attestation may provide much value through assurance with compliance and qualification for huge tax benefits. Although obtaining such certification does involve some costs, the potential tax incentives and reduced liabilities make it an important consideration for companies and investors alike.

Depending on who you are talking to, Private Equity is either the Great Satan or the savior of small and mid-market companies in the United States. The stories depend a lot on the personal experience of the speakers. Once a vehicle for high-risk investment plays in corporate takeovers (see Bryan Burrough’s Barbarians at the Gate,) Private Equity has morphed into tranches where specialists seek opportunities in everything from a Main Street entrepreneurship to multi-billion-dollar entities. What is Private Equity? The term itself is relatively generic. According to Pitchbook, there are currently 17,000 Private Equity Groups (or PEGs) operating in the US. The accepted business model for our purposes is a limited partnership that raises money to invest in closely held companies. The purpose is plain. Well-run private businesses typically produce a better return on investment than publicly traded entities. The current Price to Earnings (or PE – just to be a little more confusing) ratio of the S&P 500 is about 27.5. This is after a long bull market has raised stock prices considerably. The ratio is up 11.5% in the last year. That means the average stock currently returns 3.6% profit on its price. Of course, the profits are not usually distributed to the shareholders in their entirety. Compare that to the 18% to 25% return many PEGs promise their investors. It’s easy to see why they are a favorite of high net worth individuals, hedge funds and family offices. As the Private Equity industry has matured and diversified, they have even drawn investment from the usually more conservative government and union pension funds. Private Equity Types Among those 17,000 PEGs the types range from those who have billions in “dry powder” (investable capital,) to some who claim to know of investors who would probably put money into a good deal if asked. Of course, which type of PEG you are dealing with is important information for an owner considering an offer. private equity moneyThe “typical” PEG as most people know it has a fund for acquisitions. It may be their first, or it may be the latest of many funds they’ve raised. This fund invests in privately held businesses. Traditionally PEGs in the middle market space would only consider companies with a free cash flow of $1,000,000 or greater. That left a plethora of smaller businesses out of the game. For a dozen years I’ve been writing about the pending flood of exiting Boomers faced with a lack of willing and able buyers. I should have known better. Business abhors a vacuum. Searchfunders Faced with an overabundance of sellers and a dearth of capable buyers, Private Equity spawned a new model to take advantage of the market, the Searchfunders. These are typically younger individuals, many of whom graduated from one of the “EBA” (Entrepreneurship By Acquisition) programs now offered by almost two dozen business schools. These programs teach would-be entrepreneurs how to seek out capital, structure deals, and conduct due diligence. Some Searchfunders are “funded”, meaning they have investors putting up a stipend for their expenses. Others are “self-funded.” They find a deal, and then negotiate with investment funds to back them financially. Both PEGs and Searchfunders seek “platform” companies, those that have experienced management or sufficiently strong operational systems to absorb “add-on” or “tuck-in” acquisitions. The costs of a transaction have bumped many seasoned PEGs into $2,000,000 and up as a cash flow requirement. Searchfunders have happily moved into the $500,000 to $2,000,000 market. In the next article we’ll discuss how PEGs can promise returns that are far beyond the profitability of the businesses they buy.

Early last month, the Occupational Safety and Health Administration (OSHA) proposed the Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings rule. The aim is to curb heat related injuries or death which OSHA identifies as “the leading cause of death among all hazardous weather conditions in the United States.” The proposal places new responsibilities on employers: establishing heat thresholds, developing Heat Injury and Illness Prevention Plans, regularly monitoring temperatures, and establishing safety measures when heat thresholds are met. This rule is yet to be finalized however, it is a sign of what’s to come. The standard applies to all employers except for the following: Work activities for which there is no reasonable expectation of exposure at or above the initial heat trigger. Short duration employee exposures at or above the initial heat trigger of 15 minutes or less in any 60-minute period. Organizations whose primary function is the performance of firefighting and other certain emergency services. Work activities performed in indoor work areas or vehicles where air conditioning consistently keeps the ambient temperature below 80°F. Telework (work from home). Sedentary work activities at indoor work areas that only involve some combination of the following: sitting, occasional standing and walking for brief periods of time, and occasional lifting of objects weighing less than 10 pounds. Heat Thresholds There are two heat thresholds which will trigger employer action: An “initial heat trigger” means a heat index of 80°F or a wet bulb globe temperature (defined below) equal to the National Institute for Occupational Safety and Health (NIOSH) Recommended Alert Limit; and A “high heat trigger” means a heat index of 90°F or a wet bulb globe temperature equal to the NIOSH Recommended Exposure Limit. The “heat index” is calculated by measuring the ambient temperature and humidity. Wet bulb globe temperature is a heat metric that considers ambient temperature, humidity, radiant heat from sunlight or artificial heat sources and air movement. Employers may choose either method of measuring the temperature.   Heat Injury and Illness Prevention Plan (HIIPP) Requirements If an employer does not fall under the exceptions, it must develop a HIIPP with the input of non-managerial employees and their representatives for occasions when the heat threshold is surpassed. This plan may vary on the worksite but must be written if the employer has more than 10 employees and use a language employees will understand. The HIIPP must contain: A comprehensive list of the type of work activities covered by the HIIPP Policies and procedures needed to remain compliant with the standard. Identification of which heat metric the employer will use heat index or wet bulb globe temperature. A plan for when the heat threshold is met. Along with creating the HIIPP, employers must designate one or more “heat safety coordinators” responsible for implementing and monitoring the HIIPP. The HIIPP must be reviewed at least annually or whenever a heat related injury or illness results in death, days off work, medical treatment exceeding first aid, or loss of consciousness. Employers must seek input from non-managerial employees and their representatives during any reviews or updates. The definition of “representative” is not defined; if this is broadly defined, this could be a major complexity employers must face. Identifying Heat Hazards Employers must monitor heat conditions at outdoor work areas by: Monitoring temperatures at a sufficient frequency; and Track heat index forecasts or Measure the heat index or wet bulb globe temperature at or as close as possible to the work areas. For indoor work areas, employers must: Identify work areas where there is an expectation that employees will be exposed to heat at or above the initial heat trigger; and Create a monitoring plan covering each identified work area and include this work area in the HIIPP. Employers must evaluate affected work areas and update their monitoring plan whenever there is a change in production processes or a substantial increase to the outdoor temperature. The heat metric employers choose will affect the thresholds. If no heat metric is specified, the heat metric will be the heat index value.  Employers are exempt from monitoring if they assume the temperature is at or above both the initial and high heat trigger, in which case they must follow the controls below. Control Measures When Heat Triggers are Met When the initial heat trigger is met, employers must: Provide cool accessible drinking water of sufficient quantity (1 quart per employee per hour). Provide break areas at outdoor worksites with natural shade, artificial shade, or air conditioning (if in an enclosed space). Provide break areas at indoor worksites with air conditioning or increased air movement, and if necessary de-humidification. For indoor work areas, provide air conditioning or have increased air movement, and if necessary de-humidification. In cases of radiant heat sources, other measures must be taken (e.g., shielding/barriers and isolating heat sources). Provide employees a minimum 15-minute paid rest break in break areas at least every two hours (a paid or unpaid meal break may count as a rest break). Allow and encourage employees to take paid rest breaks to prevent overheating. At ambient temperatures above 102° F, evaluate humidity to determine if fan use is harmful. Provide acclimatization plans for new employees or employees who have been away for more than 2 weeks. Maintain effective two-way communication between management and employees. Implement a system to observe signs and symptoms of heat related problems (e.g., a Buddy system). When the high heat trigger is met, employers are additionally required to: Provide employees with hazard notifications prior to the work shift or upon determining the high heat trigger is met which includes: the importance of drinking water, employees right to take rest breaks, how to seek help in a heat emergency, and the location of break areas and water. Place warning signs at indoor work areas with ambient temperatures exceeding 102° F. Other Requirements Training: all employees and supervisors expected to perform work above the heat thresholds must be trained before starting such work and annually.   What’s Next? The rule is yet to be published in the Federal Register. Once this happens, there will be a 120-day comment period when all members of the public may offer OSHA their opinion about the rule. Whether this rule comes to fruition may also depend on which party wins the White House. Furthermore, if finalized this rule would likely be challenged in the courts, which now have more discretion to overrule agency rules following the US Supreme court case of Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce (overturning the Chevron deference decision). Employers should review their heat illness prevention policies to maintain compliance with regulations. If you have questions, call competent labor and employment counsel. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560  

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