By: Nickole Winnett, Shareholder at Jackson Lewis, P.C. and Tressi L. Cordaro, Shareholder at Jackson Lewis, P.C.
As a cold winter finally comes to an end, many of us look forward to summertime warmth. But while sun and heat may make for a fun day at the beach, they can spell danger for workers who are exposed to soaring temperatures and a rising heat index. According to the Occupational Safety and Health Administration ("OSHA"), thousands of workers in the United States get sick from excessive heat exposure while working outdoors each year and more than 30 workers died in 2012 from heat-related illnesses. "Industries most affected by heat-related illness are: construction; trade, transportation and utilities; agriculture; building, grounds maintenance; landscaping services; and support activities for oil and gas operations," says OSHA.
Although OSHA has no heat illness prevention standard, Section 5(a)(1) of the Occupational Safety and Health Act of 1970 ("OSH Act"), known as the General Duty Clause, requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. That includes protecting them from heat stroke and other serious heat-related illness. Of the "State-plan" states running their own safety programs under agreements with OSHA, only California, Minnesota, and Washington currently have heat-related illness prevention standards. However, other State-plan states also have general duty clauses in their statutes that may be invoked to address these issues.
OSHA has stepped up its focus on and enforcement of heat-related hazards over the years, citing employers for failing to properly protect workers from heat illnesses, including issuing willful citations with a proposed penalty of $70,000 in some cases. California has also made heat prevention a top priority. It recently made changes to its robust heat prevention standard that became effective on May 1, 2015. The changes affect potable water, shade requirements, preventative cool-down, high heat procedures and emergency preparedness.
The dangers associated with excessive heat exposure and the potential for citations are real. Employers should evaluate conditions at their worksites and take steps to prevent heat-related illness among their workers. Here are some specific considerations employers should keep in mind in evaluating worksite conditions, along with proactive measures suggested by OSHA:
1. OSHA's Heat Smartphone App
Employees who are required to engage in intense or continuous physical exertion, or who are exposed to high temperatures and humidity or direct sunlight, may be susceptible to heat-related illness. Consult OSHA's Heat Smartphone App, which helps employers measure heat stress conditions in direct sunlight that takes into account temperature, humidity, wind speed, sun and cloud cover, and the National Weather Service Heat Index. The App, which is also available in Spanish, can generate reminders about protective measures such as water and rest breaks, acclimatization, training and monitoring, all of which are discussed in further detail below. According to OSHA, approximately 160,000 users have downloaded the Heat Smartphone App since it was released in 2011.
2. Acclimatization of Employees
Remember employees who have not previously worked outdoors in high temperature conditions generally are more at risk because they have not built up a tolerance to hot conditions. In fact, OSHA reported, after reviewing 20 federal enforcement cases from 2012-2013, that one of the leading causes of heat illness and death among workers in the United States was from a lack of acclimatization - a process by which you give the body time to acclimate to heat and humidity by slowly increasing the amount of time spent working in those conditions over several days. The report concluded that a failure to provide acclimatization of new employees or employees who are returning to work from an absence of more than a week was "the most common deficiency and the factor most clearly associated with death." OSHA notes that full acclimatization may take up to 14 days or longer depending on factors relating to the individual, such as increased risk of heat illness due to certain medications or medical conditions, or the environment.
3. Heat Illness Prevention Program
OSHA's report also concluded a "contributing factor in heat illness and death among workers was a lack of a heat illness prevention program that includes basic requirements, such as water management, shaded rest areas, and work-rest cycles." Designate a person to oversee a Heat Illness Prevention Program and enforce its requirements. As the summer progresses, review and revise the program as necessary and ensure appropriate personnel are aware of such modifications. Consider using a daily checklist to make sure all appropriate precautions are in place each day.
4. Implement More Frequent Breaks
Provide air-conditioned or shaded areas close to the work area and schedule frequent rest breaks. Implement more frequent breaks during the first week of work in high-heat conditions and develop a work/rest regiment that establishes how often and when breaks should be taken.
5. Make Sure Water is Replenished
Provide workers with plenty of cool drinking water in convenient, visible locations close to the work area. Encourage and remind workers to drink water before they become thirsty and about every 15 minutes. One cup every fifteen minutes is a good rule of thumb. It is even more important to remind workers to drink water during a heat wave. Make sure water is replenished throughout the day.
6. Make Work Schedule Changes as Appropriate
Make work schedule changes as appropriate. Examples include: rescheduling all non-essential outdoor work for days with a reduced heat index; scheduling the more physically demanding work during the cooler times of day and the less physically demanding work during warmer times of the day; rotating workers or using split shifts; and stopping work if essential control methods are inadequate or unavailable when the risk of heat illness is very high.
7. Proper Attire
Encourage employees to wear or provide employees with light-colored and permeable clothing and consider whether other controls can be implemented.
8. Monitor Workers for Signs and Symptoms of Heat Exposure
Monitor workers for signs and symptoms of heat exposure and encourage employees to report symptoms of any heat-related illnesses. Have workers partner up with each other and watch out for signs of heat-related illness in their co-workers. Two of the most serious heat-related illnesses are heat stroke and heat exhaustion. Both are dangerous illnesses that could result in death or hospitalization of the worker. Heat stroke occurs when the body's way of cooling itself fails and the body temperature rises above 104°F. The signs and symptoms of heat stroke are a high body temperature, red or hot skin, confusion, fainting and/or convulsions. Heat exhaustion occurs when the body temperature rises above 100.4°F. The signs and symptoms of heat exhaustion are headache, nausea, dizziness, weakness, irritability, confusion, thirst, and heavy sweating.
9. Train Workers and Supervisors about the Hazards Leading to Heat Stress
Train workers and supervisors about the hazards leading to heat stress and ways to recognize heat-related illness in themselves and others, ways to prevent heat-related illness, and awareness of first-aid procedures.
10. Implement an Emergency Action Plan
Implement an emergency action plan and know what to do if someone is experiencing symptoms of a heat-related illness. Make sure workers know who to notify if there is an emergency.
By limiting employees' time in the heat and implementing safe work practices, employers can help prevent heat-related illness and reduce the chances of receiving a General Duty Clause citation. It is recommended that employers review their heat illness and prevention plans to ensure that they properly address potable water, shade, preventative cool-down rest periods, acclimation, training, and emergency responses policies and procedures. OSHA has resources to help employers and employees stay safe when working in high-temperature and high-humidity conditions, including the following:
- Educational resources, many of which can be used for outreach with employees with limited English proficiency and/or low literacy; Guidance in developing a heat illness prevention plan; and Training materials; A "toolkit" containing articles and other communications to facilitate heat illness prevention; and An interactive "infographic" representing heat-related fatalities between 2008 and 2014.