Legally Speaking: OSHA Focuses in on Heat Stress

Bob Dunlevey

Bob Dunlevey is an attorney with Dunlevey, Mahan & Furry (www.dmfdayton.com) in Dayton, Ohio. He is well recognized for his counseling and defense of businesses having employment-related issues, including federal and state court litigation and OSHA proceedings, wage-hour compliance, collective bargaining, wrongful discharge defense, and regulatory compliance. He can reached at rtd@dmfdayton.com.

July 1, 2014

Although there is no specific legal
standard for addressing hot-work environments, the Occupational Safety and Health Administration (OSHA) is currently focusing its efforts on the
prevention of heat-related illnesses. OSHA has launched its annual Campaign to Prevent Heat Illness in Outdoor Workers, and is focusing many of
their efforts on ensuring employers are addressing the threat of heat illness. A recent Washington memo to OSHA’s Regional Administrators emphasized the importance
of this issue, and stated that “this memo directs the Field to expedite heat-related inspections and to issue Citations . . . as soon as
possible.” Employers should take action now to ensure their workplaces are free of heat hazards, or they could potentially face costly citations and
litigation.

Working in a hot environment puts stress on a body’s cooling system; too much heat can result in dehydration, cramps, heat
exhaustion, or even a fatal heat stroke. The risk of heat stress depends upon many factors—some of which relate to individual employees—and
can make it difficult to establish safe working processes. These risk factors include the employee’s physical condition, the temperature and humidity,
clothing worn, the pace of work and how strenuous it may be, exposure to sun, and environmental conditions such as air movement.

OSHA is utilizing its General Duty Clause, Section 5(a)(1), in an attempt to make new standards that will further regulate
employers’ activities when they have projects in hot environments. A violation of the General Duty Clause may exist when workers have been working in a hot
environment and the employer is aware of the heat-related dangers, but has not taken adequate protective action for the workers—such as water,
rest, and shade. However, OSHA expects that employers will take steps beyond these basic measures to ensure worker safety, which is why employers must plan
for additional safety measures. To be compliant with OSHA’s expectations for heat-illness prevention, employers should implement an acclimatization
program for new employees, and also for those returning from extended time away, such as vacations or leaves of absence. OSHA also suggests that employers
implement a work/rest schedule and provide a climate-controlled area for cool down. Temporary workers have a greater risk of experiencing heat-related illnesses, and
OSHA is urging greater care in adopting an acclimatization program for them. Simply telling your employees that it is a hot day and they should take breaks when
they need to and drink as much water as necessary will not meet OSHA’s expectations, and could very easily result in a citation. OSHA believes that
employers should actively encourage the consumption of at least 5 to 7 ounces of fluids every 15 to 20 minutes.

OSHA is also urging that each employer establish a heat-stress program, but by doing so, the employer is acknowledging heat stress
as a hazard on their job site. Once a hazard is recognized and a safety program is established, an OSHA Compliance Officer may
investigate, and may potentially find an employer’s safety program inadequate. This is a dilemma for employers that is yet unresolved
by the courts.

A heat stress program can have many components, including, but not limited to:

Training

  • Hazards of heat stress
  • Responsibility to avoid heat
    stress
  • Recognition of danger
    signs/symptoms because employees may not
    recognize their own
  • First aid procedure
  • Effects of certain
    medications in hot environments

Personal Protective
Clothing/Equipment

  • Light-colored summer
    clothing allowing free movement and
    sweat evaporation
  • Loosely worn reflective
    clothing to deflect heat
  • Cooling vest and wetted
    clothing for special circumstances

Administrative/Engineering
Controls

  • Assess the demands of all
    jobs and have monitoring and control
    strategies in place for hot days and hot
    workplaces
  • Schedule hot jobs for cooler
    parts of the day
  • Reduce physical demands
  • Permit employees to take
    intermittent rest breaks with water
    breaks and use relief workers
  • Have air conditioning and
    shaded areas available for breaks/rest
    periods with ice available
  • Increase air movement
  • Exhaust hot air and
    steam

Health
Screening/Acclimatization

  • Let employees get used to
    hot working conditions by using a
    staggered approach over several days,
    such as beginning work with 50% of the
    normal workload and time spent in the
    hot environment, and then generally
    increase it over 5 days.
  • Make employees aware that
    certain medications—such as
    diuretics; anti-hypertensives (blood
    pressure); anti-cholinergics (pulmonary
    disease, chronic obstructive pulmonary
    disease [COPD]); and alcohol
    abuse—can
    exacerbate problems.

OSHA is also inclined to cite an
employer if prompt remedial action is
not taken when an employee falls victim
to heat stress.
Employers should establish specific
procedures for heat-related emergencies
and provision that first aid be
administered immediately to employees
who display symptoms of heat-related
illness. Those suffering from heat
illness may be resistant to first aid
because of the confusion caused by heat
stress. Therefore, training on the signs
and symptoms of heat illness is also
encouraged.

Heat illness is always a risk with
the arrival of summer, and it is crucial
to be prepared. Failing to create a
proper heat-illness
prevention program can put your
employees at risk and lead to a visit
from OSHA.

SIDEBAR

OSHA Launches Annual Summer Campaign to Prevent Heat-Related Illnesses

The Occupational Safety and Health Administration (OSHA) has announced the launch of its annual Campaign to Prevent
Heat Illness in Outdoor Workers. For the fourth consecutive year, OSHA’s campaign aims to raise awareness and educate workers
and employers about the dangers of working in hot weather and provide resources and guidance to address these hazards. Workers at
particular risk are those in outdoor industries, such as agriculture, construction, landscaping, and transportation.

Heat-related illnesses can be fatal, and employers are responsible for keeping workers safe, said U.S. Secretary of Labor Thomas
E. Perez. Employers can take a few easy steps to save lives, including scheduling frequent water breaks, providing shade, and allowing
ample time to rest.

Thousands of employees become sick each year and many die from working in the heat. In 2012, there were 31 heat-related worker deaths and 4,120 heat-related worker
illnesses. Labor-intensive activities in hot weather can raise body temperatures beyond the level that normally can be cooled by sweating. Heat illness initially may
manifest as
heat rash or heat cramps, but can quickly escalate to heat exhaustion and then heat stroke if simple preventative measures are not followed. Heat illness
disproportionately affects those
who have not built up a tolerance to heat (acclimatization), and it is especially dangerous for new and temporary workers.

Acclimatization is a physical change that the body undergoes to build tolerance to heat, and it is a critical part of preventing heat illnesses and fatalities,”
said Dr.
David Michaels, Assistant Secretary of Labor for OSHA. Over the past 3 years, lack of acclimatization was the cause in 74% of heat-related citations issued. Employers
have a responsibility to provide workplaces that are safe from recognized hazards, including outdoor heat. Last year, OSHA issued 11 heat-related citations. In some
of these
cases, the employer and staffing agency were cited because they involved temporary workers.

In preparation for the summer season, OSHA has developed heat-illness educational materials in English and Spanish, as well as a curriculum to be used for
workplace training—also available in both English and Spanish. Additionally, a Web page provides information and resources on heat illness—including how
to prevent
it and what to
do in case of an emergency—for
workers and employers. The page is
available at: www.osha.gov/SLTC/heatillness/index.html or http://tinyurl.com/3bqo442.

OSHA has also released a free application for mobile devices that enables workers and supervisors to monitor the heat index at their work sites. The app displays a
risk level for workers based on the heat index, as well as reminders about protective measures that should be taken at that risk level. Since its 2011 launch, more
than 130,000 users have downloaded the app. Available
for Android-based platforms and the iPhone, the app can be downloaded in English and Spanish by visiting: www.osha.gov/SLTC/heatillness/heat_index/heat_app.html or http://tinyurl.com/mffmqyb.

In developing its inaugural national campaign in 2011, federal OSHA worked closely with the California Occupational Safety and Health Administration and adapted
materials from that state’s successful campaign. Additionally, OSHA is partnering with the National Oceanic and Atmospheric Administration (NOAA) to incorporate
worker safety precautions when heat alerts are issued across the nation. NOAA also will include pertinent worker safety information on its heat watch website at
www.noaawatch.gov/themes/heat.php
or http://tinyurl.com/4mk6yf.