Editor’s Note – Mark Lies, II, is a partner in the Chicago, IL, law firm of Seyfarth, Shaw, Fairweather and Geraldson, who specializes in labor and employment law as well as occupational safety and health. Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.
As summer approaches, employers must begin to consider their obligation to and potential legal liabilities for protecting employees against the hazard of heat. This hazard can involve employer legal duties under many laws, including Occupational Safety and Health Act (OSHA), Americans with Disabilities Act (ADA), criminal law, worker’s compensation, third-party liability (outside contractors), or OSHA liability.
While the federal OSHA does not have a standard relating to the hazard of heat, it can regulate the workplace under its General Duty Clause (Section 5(a)(1)). Heat is a “recognized” hazard to human safety and health, since the impact on humans can range from nausea to death, depending upon the extent of exposure.
OSHA requires employers to evaluate whether such a hazard exists, and if so, to develop means and methods to protect employees, ranging from work practices (rest breaks, job rotation), to personal protective equipment (cooling vests) to engineering controls (ventilation, cooling rooms). An employer who fails to take such steps is subject to citation and monetary penalties.
In addition, when an employee becomes incapacitated by heat to the extent that the employee requires medical treatment, loses consciousness, has days away from work or restricted duty – or dies – the employer is required to record this information on its OSHA 300 Log. Widespread heat-related illnesses may also trigger an employee to contact OSHA, resulting in an inspection.
Since heat-related illness can also impact an employee’s mental capacity and physical coordination, this hazard can result in potential accidents at work when employees lose focus or muscle control on their jobs (particularly when operating mechanized equipment or working around hazardous machinery), resulting in injury to themselves or to co-employees.
Some states have begun to prepare specific regulations to deal with heat hazards in the workplace. The state of California is currently considering a regulation, “Heat Illness Prevention Program,” which would require an employer to establish, implement, and maintain procedures to prevent the occurrence of heat illness to their employees. This proposed standard includes hazard assessment, employee training, and supervisor training.
Finally, the employer must assure that there is adequate first aid assistance available, either on-site or readily available, to provide emergency medical assistance to stricken employees.
Personal Protective Equipment – A Heat Hazard
In many industries, OSHA regulations require employees to wear personal protective equipment (PPE) to protect them against workplace hazards. Often overlooked is the fact that PPE can frequently create a heat hazard. For example, employees in a foundry may be required to wear flame retardant clothing or painters in a spray booth may need to wear protective clothing, each of which can act as devices which prevent the release of employee body heat and thereby causing the employee’s temperature to rise. In developing a heat illness program, the employer must consider the impact of working conditions, including PPE, in creating heat hazards.
Americans with Disabilities Act
Heat will affect each employee in a unique fashion, depending upon the individual characteristics or health conditions of the employees. For example, an employee’s ability to tolerate heat can be dependent upon medication, obesity, cardiovascular conditions, diabetes, use of alcohol or drugs, or other medical conditions.
A number of these conditions will likely be unknown to the employer, particularly because of restrictions placed upon the employer by the ADA. The employer will have to approach its program to protect employees against heat by attempting to determine whether employees may require assistance at work in working around heat because of their personal health conditions, without violating the ADA. In this regard, the employer has a right to inquire as to whether employees may need assistance to protect them against hazards to their health in order to comply with OSHA.
In the event that an employee actually sustains a heat-related illness, the employer may also have the right to a fitness-for-duty evaluation to determine whether the employee can continue to perform the essential functions of the job.
Criminal Liability
The employer may also face criminal liability for failing to protect employees against this hazard. For example, in Illinois, the courts have allowed employers to be criminally prosecuted when employees have been exposed to high levels of heat resulting in injury. In People v. Chicago Magnet Wire Corporation, 126 Ill.2d 356 (1989), the Illinois Supreme Court held that a corporation and its officers and agents could be indicted for aggravated battery and reckless conduct for exposing employees to inadequate ventilation and dangerously overheated working conditions. In this case, the employees were utilizing steam and chemicals to clean electric motors, which caused temperatures in the plant to reaches 140 degrees Fahrenheit. Employees were becoming nauseated and ill from the exposure.
Worker’s Compensation
In the event that an employee sustains a heat-related illness, the employer will face worker’s compensation liability. The gravity of the claim may be substantially enhanced if the employee is overcome while operating machinery and sustains injury by falling into or off of the equipment.
Third-Party Liability (Outside Contractors)
The scope of employer liability may extend to third parties who are on the worksite and who are exposed to heat hazards, if it can be established that the employer was in a position to control the hazard and failed to take appropriate action. This derivative liability can arise under OSHA’s multi-employer workplace doctrine or under state law premises liability doctrines.
Compliance Recommendations
Heat illness can be very insidious. For example, an employee who is heavily sweating can lose up to six quarts of water in a workday – approximately 13 pounds! In high heat atmospheres, normal heat responses, like thirst, are inadequate – by the time the body signals its thirst, the individual is already partially dehydrated.
In order to meet these various obligations, the employer should develop a program that includes the following elements:
• Hazard identification – develop means to identify potential heat hazards (job functions, equipment, etc.) and consult employees in this process;
• Hazard correction – a plan to develop procedures to correct or reduce the heat hazards identified;
• Employee training – encompass description of various types of heat illness, information on how heat illness occurs, including environmental conditions, working conditions, and individual employees health conditions or work practices (e.g., failure to consume adequate water or to acclimatize to heat), how to recognize the common signs and symptoms of heat illness, duty to promptly report to a supervisor if the employee or co-employee is experiencing the signs and symptoms of heat illness to obtain assistance, and documentation of the training;
• Supervisor training – include enhanced supervisor training on the signs and symptoms and how to respond, and explanation of the employer’s program and how to implement it;
• First aid – identify adequately trained and readily available first aid services, either in-house or outside providers.
If the employer develops these recommendations, it will substantially reduce its potential liability associated with heat illness.
Labor and the Law - June 2002 Render