Editor’s Note – Mark Lies II is a labor and employment law attorney and partner with the Chicago, IL, law firm of Seyfarth Shaw. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
Sooner or later, every workplace is going to encounter the phenomenon known as “hot work.” In workday usage, hot work is used to describe operations that involve the use of torches to cut, weld, or fabricate metals and other materials. During construction or modification of the workplace structure, employees may be exposed to hot work. In other workplaces, hot work is routinely performed to conduct maintenance operations or to fabricate finished products.
Unfortunately, hot work has led to tragic accidents when it is not properly performed, including fires causing property damage and serious personal injuries or death. Because of the nature of the work, employees are also exposed to injury by reason of the components within the materials being cut or welded (e.g., lead paint on the surface of a material or the actual material being worked upon) or the types of welding medium (e.g., gasses, welding rods, etc.) the employees are utilizing. Finally, these hazards are potentially compounded at the workplace when outside contractors or subcontractors commence hot work in an area where there are employees of another employer who are unaware of or are unprotected from the hazards of such work. This article will discuss an overview of these issues.
OSHA
The Occupational Safety and Health Administration (OSHA) has issued regulations relating to welding, cutting, and brazing for General Industry (29 CFR 1910.251-5; Subpart Q) and for welding and cutting in the Construction Industry (29 CFR 1926.350-4; Subpart J). There is also a regulation relating to hot work in the workplaces subject to Process Safety Management (29 CFR 1910.119). A particularly significant potential for an unexpected and catastrophic explosion relates to welding or cutting on unknown or improperly prepared tanks or equipment that have previously contained flammable gasses, vapors, liquids, or dusts (29 CFR 1910.252 (a)(2)(vi)(c)). Numerous tragedies have occurred when such tanks or vessels have exploded during welding or cutting because the employee had no knowledge of the current or prior contents of such equipment or assumed that it was properly prepared (purged, cleaned) to allow hot work on it.
Health Hazards
The regulations also address the health hazards that may arise during such work, including:
• Welding fumes and gasses;
• Metals contained in the brazing and welding fluxes;
• Hazardous materials released or generated during the process such as lead or other coatings on metals or other materials.
The employer is required to determine whether these health hazards exist, and if so, to protect employees either through the use of ventilation to eliminate the contaminants, or through use of respirators and other personal protective equipment to reduce or eliminate exposure.
In order to determine whether such a hazard exists, it is necessary to conduct hygiene monitoring of employee exposure.
Employers must provide the employees with the test results of such monitoring.
Respiratory Protection
If it is determined that employee exposure is above the permissible exposure level for the particular substance, and the employer cannot reduce such exposure through ventilation, the employer must provide appropriate respiratory protection. Under the General Industry regulations (29 CFR 1910.134), these requirements are extensive, requiring a physical evaluation of the employee to determine whether the employee is physically capable of wearing a respirator without creating a health hazard. Thereafter, the employee must be provided with appropriate respiratory protection and trained in its proper use. Annual evaluations are required for continued use.
Americans with Disabilities Act
Employers must be aware of the Americans with Disabilities Act (ADA), which protects employees who may have a “disability” that affects a major life activity. This law may impact employees who are disqualified from performing hot work because of physical disability (e.g., emphysema or other respiratory condition) if such condition rises to the level of a legally protected disability.
Conversely, an employer may have a defense to an ADA claim by an employee who is disqualified if the employer can show that the employee may represent a “direct threat” to his own safety or health or to other employees. For example, an employee who may have a heart attack because of the exertion of wearing a required respirator could pose a very real threat to his own health and could create a fire or explosion hazard to other employees if so impaired.
Confined Spaces
The potential hazards of hot work are greatly enhanced if the work is to be performed within a confined space. If the work is to be performed in a confined space, the employer is required to comply with the requirements of the Permit-Required Confined Spaces regulation (29 CFR 1910.146), which requires many additional safeguards, including attendants and rescue capability.
Outside Contractors/Subcontractors
Many employers are incapable of performing hot work and thus they engage outside contractors to perform such work. In these instances, the host employer must carefully select the outside contractor and determine that the contractor has the requisite safety and health compliance programs, trained employees, and competent supervisory personnel to ensure that the work is being performed in accordance with the applicable regulations.
An extremely important factor in this work is a thorough orientation of the outside contractor or subcontractor to the hazards on the worksite (e.g., vessels, piping, chemicals) that the contractor or subcontractor may not be aware of and which may present a fire or explosion hazard. Many accidents have occurred when uninformed contractors begin work upon an unknown piece of equipment or in an area that presents a fire or explosion hazard. As an additional safeguard, the host employer should require the contractor to provide adequate insurance coverage, naming the host employer as an additional insured.
While a very necessary work activity, hot work poses a potential liability area to employers on many levels. If the employer develops and enforces a plan to address these various potential hazards of this work that may arise in a logical fashion, it can substantially reduce its legal liability.
Labor and the Law - December 2002 Render