Heat Stress and the General Duty Clause

Gary Auman

Gary Auman (www.dmfdayton.com) is a Partner in the law firm of Dunlevey, Mahan & Furry in Dayton, Ohio. He graduated with an electrical engineering degree from the University of Louisville in 1969, and a law degree from The Ohio State University in 1976. Since then, his practice has focused on defending employers in workers’ compensation and OSHA cases. In 2002, Mr. Auman was awarded the Distinguished Service to Safety Award by the National Safety Council. He has worked with OSHA in its development of safety and health standards, and he has defended OSHA cases in several federal appellate courts. Mr. Auman also represents 4 national and regional trade associations in the construction industry. He can be reached at gwa@dmfdayton.com.

October 1, 2012

As the heat of summer
continues, a recently published decision of the Occupational Safety and Health
Review Commission (OSHRC) bears discussion. In Secretary of Labor v. Post
Buckley Schuh & Jernigan, Inc. (PBSJ), OSHRC Docket No. 10-2587, Judge
Patrick B. Augustine affirmed a serious citation against the employer for a
violation of the “General Duty Clause” (Section 5(a)(1)) of the Occupational
Safety and Health Act of 1970. 

Much has been said about heat stress as a significant safety
issue, yet many employers give it only passing treatment. Most employers put
cold water on job sites and tell their employees to keep hydrated. Some
employers go so far as to require employees to take periodic rest breaks, and
some even have those breaks taken in a cool environment. In light of the recent
decision, however, this is one time when a little attention is clearly not
enough.

There is no OSHA standard addressing the
hazard of heat stress. OSHA’s enforcement option for such a case is through the
General Duty Clause of the Occupational Safety and Health Act; so when OSHA
does a compliance inspection and concludes that the employer is not providing a
safe place of employment because of the potential for heat-related illnesses,
it must cite the employer under the General Duty Clause.

As you already know, the General Duty Clause requires
employers to provide a place of employment that is free of recognized hazards
that are causing or are likely to cause death or serious physical harm. To
prove a violation, OSHA must provide evidence demonstrating these key
components of the General Duty Clause. In this case, the element of proof would be that the potential heat stress is a hazard that is
recognized either by the employer or its industry and that it is causing or
likely to cause death or serious physical harm.

So, where does this leave the employer?
Judge Augustine’s decision seems to conclude that if you have taken any steps
to address the heat stress issue, you have recognized heat stress as a Section
5(a)(1) hazard. The judge took what the employer in this case did to address
the heat stress hazard and compared it with the heat stress management program
recommended by the National Institute for Occupational Safety and Health’s
(NIOSH) publication Working In Hot Environments.

The NIOSH document recommends a program that includes, but is
not limited to, the following elements:

1.   Acclimatize employees beginning
work in a hot environment and those employees who have been absent from the hot
environment for more than 3 days.

2.   Develop a work/rest regimen. In
the reported case, the judge felt that the employer’s heat safety program was
deficient because it did not have a work/rest regimen; rather, it depended on
employees asking for breaks. (How many of you take this approach?)

3.   Provide cool water and encourage
employees to drink 5 to 7 ounces of fluid every 15 to 20 minutes. In the
reported case, the employer provided ice and water and instructions to be sure to
“drink lots of water.” The judge found this to be deficient because it did not
encourage employees to drink 5 to 7 ounces of water every 15 to 30 minutes.
(Sound familiar?)

4.   Provide for a cool rest area. The
employer should have a rest area close to the worksite that has a temperature
maintained at approximately 76°F. The judge concluded that to permit employees
to go to their vehicles?about a 15-minute walk away?to sit with the air
conditioners on was not adequate. A question was raised as to whether an
employee suffering from heat issues would be able to walk 15 minutes to get to
a cool place.

5.   Provide training to employees
regarding the health effects associated with heat stress, symptoms of
heat-related illnesses, and the methods of prevention. Again, the judge
concluded that the employer’s program was deficient because its training
program did not address the health effects of heat-related illnesses or how to
prevent those illnesses.

Another point NIOSH may be contemplating
is advising that employees be screened for underlying physical conditions that
could be aggravated by exposure to a hot work environment. Because the NIOSH
document did not recommend a screening, however, the judge did not find a
deficiency on this item. I caution readers who approach this criterion with an
eye toward compliance to be aware of the many other laws, such as the Americans
with Disabilities Act, which make it difficult for an employer to legally
obtain this information.

The message from the PBSJ decision is
that while heat stress and its related illnesses might not be governed by a
specific safety standard, it is taken seriously by OSHA and needs to be taken
very seriously by all employers. You need to have a program covering heat
stress or working in a hot environment, and it needs to be more than a reminder
to employees to stay cool, drink plenty of fluids, and ask to take a rest if
they begin to feel bad. You need to model your program around at least the five
guidelines in the NIOSH document. Remember, for many employers, hot weather
will be around for the next 2 to 3 months.