Baby, it’s cold outside: Will that make OSHA chill out in response to ongoing pressures for heat standards?

Baby, it’s cold outside: Will that make OSHA chill out in response to ongoing pressures for heat standards?

by Travis Vance and Pamela Williams

Fisher Phillips 

As parts of the United States are dealing with massive winter snowstorms, many are longing for the return of the warmth of summer. However, employers should be cautious in making such wishes as summer can bring blistering heat that creates hazards for workers working both outside and inside. In fact, employers can be held liable for creating conditions that lead to heat-related injuries and illnesses.

Legal climate

Although OSHA does not have a specific standard that covers working in hot environments, the General Duty Clause of the Occupational Safety and Health Act requires employers to provide a place of employment that is “free from recognizable hazards that are causing or likely to cause death or serious harm to employees.” This requirement includes heat-related hazards. Meanwhile, some state OSHA plans, including those in California, Washington and Minnesota, have enacted protective heat standards.

Does the fact that federal OSHA has no specific heat standard in place mean that it hasn’t addressed the subject? The answer is a resounding “no.” The agency has issued various Standard Interpretation letters discussing heat stress in workplaces. In a May 2010 Standard Interpretation letter, OSHA provided methods of abating these hazards, including permitting workers to drink water or cold liquids (e.g., sports drinks) at liberty, establishing a work/rest regimen so that exposure time to high temperatures and the work rate is decreased and developing an overall heat stress program.

OSHA also addressed heat-related hazards in August 2014, when it announced that it was once again sponsoring its campaign to “Prevent Heat Illness in Outdoor Workers.” The agency noted that “thousands of workers experience serious heat-related illnesses every year and dozens are killed.” OSHA said it wanted “to make sure that employers and workers know the steps they can take to prevent heat-related illness and death.”

Ongoing pressure to adopt federal standards

Notably, both of these letters were issued under the previous presidential administration, while the current administration has been largely silent in addressing the issue. Some advocacy groups want to change that and have tried to put heat on OSHA to squarely address the issue.

Public Citizen, a consumer and health advocacy group, along with 131 other organizations and 89 other individuals (including farmworker advocacy groups and former OSHA directors), sent a letter to the Acting Assistant Secretary of Labor for Occupational Health and Safety on July 17, 2018, petitioning federal OSHA to establish the first federal standards to protect outdoor and indoor workers from occupational exposure to excessive heat. The petitioning parties cite the effects of global warming and climate change as causing the need for the agency to establish protection for workers from the dangers of exposure to excessive heat.    

Public Citizen highlights in its petition that California alone conducted 50 times more inspections resulting in citations or violations for unsafe heat exposure practices than federal OSHA did nationwide between 2013 and 2017. The group argues that this disparity supports the federal agency implementing a specific, enforceable heat standard rather than simply relying on the General Duty Clause.

Suggested Criteria

Public Citizen argues any proposed standard should be based on the National Institute for Occupational Safety and Health’s (NIOSH) latest criteria for a recommended standard for occupational exposure to heat and hot environments. The suggested standard includes elements such as:

Mandatory rest breaks: Mandatory 15- to 45-minute-per-hour rest breaks away from the hot environment at certain heat thresholds.

Personal protective equipment (PPE): When heat exposure levels reach the recommended exposure limit or recommended alert limit, employers must provide PPE to protect workers from heat-related illness. PPE may include cooling vests and light-colored, breathable fabric.

Shade: Employers must provide access to sufficient areas of shade during the rest breaks.

Hydration: Access to water in quantities sufficient to maintain adequate levels of hydration at varying levels of heat, as well as electrolytes if workers are sweating for more than two hours.

Heat acclimatization plan: Workers beginning work in high-heat environments or who will be working in hotter conditions than usual must be gradually acclimatized to the work over a period of at least seven to 14 days.

Since OSHA has not responded to Public Citizen’s July 2018 correspondence, it appears to have maintained the position it previously announced in 2011, when it expressly rejected a petition for a heat standard and noted its authority to cite an employer for heat hazards under the General Duty Clause. Nonetheless, it is possible that Congress – specifically the now Democrat-controlled House – may pressure OSHA to take action when it comes to heat standards.

Even though cool temperatures will be in force over the next few months, employers should get ready. Winter will give way to the heat of summer before we know it. Despite the lack of a specific standard addressing heat safety, employers should follow the NIOSH guidelines when temperatures rise and employees are exposed to extreme heat.

Travis Vance is a partner in the Charlotte office of labor and employment law firm Fisher Phillips. He may be reached at 704.778.4164 or tvance@fisherphillips.com. Pamela Williams is a partner in the firm’s Houston office. She may be reached at 713.292.5622 or pwilliams@fisherphillips.com. 

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