Chill Out! Avoiding OSHA Heat Illness Liability

By Mark A. Lies II, Patrick D. Joyce, Kerry M. Mohan, and O’Brien Mills

Editor’s note – Mark A. Lies II is an attorney in the Environmental, Safety, and Toxic Tort Group in the Chicago, Illinois, office of Seyfarth Shaw LLP. He is a partner who focuses his practice in the areas of product liability, occupational safety and health, workplace violence, construction litigation, and related employment litigation.

Patrick D. Joyce is an associate attorney in the Workplace Safety and Health Practice Group at Seyfarth Shaw LLP while Kerry M. Mohan is a partner with the law firm of McDermott Will & Emery. O’Brien Mills is the director of occupational safety and health for Aldridge Electric Company where he manages 14 full-time safety professionals and one in-house safety trainer.

Legal topics provide general information, not specific legal advice. Individual circumstances may limit or modify this information.

Since 2012, the Occupational Safety and Health Administration (OSHA) has aggressively prosecuted employers based on injuries and illnesses due to heat. In doing so, OSHA has focused its efforts on employers in the construction industry, foundry operators, chemical producers, and employers in warm climates. Because OSHA does not have a heat illness standard, employers are left in the cold as to what they should do to mitigate risk and safeguard employees from excessive heat. This article discusses the issue of heat illness, OSHA’s guidance, and how to prepare and protect employees from the hazard of heat.

A recent landmark decision by an administrative law judge from the Occupational Safety and Health Review Commission in Secretary of Labor v. Aldridge Electric Company, Docket No. 13-2119, is a must-read for all employers who have potential employee heat exposure in their workplaces. After an 18-day trial, the judge issued a 54-page opinion vacating one OSHA General Duty Clause citation involving a national electrical contractor arising from a workplace accident.

What is “Heat”?
For OSHA purposes, the term “heat” is comprised of two main components: (1) environmental or ambient heat; and (2) metabolic heat. Environmental or ambient heat is the heat that we all experience due to the natural environment. Factors impacting environmental or ambient heat include ambient temperature, wind, humidity, solar irradiance, and cloud coverage. Metabolic heat is heat generated internally within the human body. The harder a person works, the more metabolic heat is generated. An individual’s body mass, weight, age, sex, and medical history can all impact the amount of metabolic heat generated during any particular task.

What is Heat Illness?
Heat is not always a hazard. In fact, humans need heat to survive, particularly during cold winters. Rather, heat becomes a hazard when it is “excessive” and the body is unable to dissipate heat quickly enough.

Heat illness is complex largely because of individual variability as well as a number of external parameters that affect the individual and his or her response to the environment they are in. There are four main types of heat illness: heat rash, heat cramps, heat exhaustion, and heat stroke. Heat syncope is also a form of heat illness but is typically not considered life threatening.

Heat rash, otherwise known as prickly heat, occurs when an individual sweats in areas of restrictive clothing. Its symptoms usually involve itchy and sometimes painful red bumps. Heat cramps are muscle cramps usually caused by performing hard physical labor in a hot environment and have been attributed to an electrolyte imbalance caused by sweating. Heat cramps often occur in the back and leg muscles. Treatment for heat cramps includes having an individual rest in a cool and/or shaded area and providing water and electrolytes.

Heat exhaustion is an illness that occurs when a body overheats but the core body temperature does not rise above 101 degrees Fahrenheit (F). The signs and symptoms of heat exhaustion are heavy sweating, headache, nausea, fatigue, vomiting, vertigo, weakness, thirst, and giddiness. Workers suffering from heat exhaustion should be removed from the hot environment and placed in a cool and shaded area, given fluid replacement, and encouraged to get adequate rest.

Heat stroke, the most severe form of heat illness, occurs when the body’s temperature regulation system fails and body temperature rises to critical levels, above 101 degrees F. Heat stroke is caused by a combination of highly variable factors and its occurrence is difficult to predict. The primary signs and symptoms of heat stroke are confusion, irrational behavior, loss of consciousness, convulsions, a lack of sweating (usually), hot and/or dry skin, and an abnormally high body temperature. Workers experiencing heat stroke require immediate advanced medical attention.

What Does OSHA Say About Heat Illness?
Because OSHA does not have a heat illness standard, it relies on the General Duty Clause, Section 5(a)(1), to cite employers in cases related to heat illness. To prove a Section 5(a)(1) violation, OSHA must establish by a preponderance of the evidence that: (1) a condition or activity in the workplace created a hazard; (2) the employer or its industry recognized the hazard; (3) the hazard was likely to cause death or serious physical harm; and (4) feasible means existed to eliminate or materially reduce the hazard. To present its case, OSHA must define the hazard so that an employer is apprised of its obligations and the conditions or practices in which it can reasonably be expected to exercise control. As such, a hazard under Section 5(a)(1) cannot be established based on a “freakish or unforeseeable death.”

Currently, only two OSHA state-plan states have heat illness standards: California and Washington. Both state’s standards are based solely on the dry bulb-temperature (air measured by a thermometer freely exposed to the air but shielded from radiation and moisture) in Fahrenheit.

OSHA’s Guidance on Heat Illness
In 2012, OSHA implemented its Heat Illness Prevention campaign through its “Water. Rest. Shade.” program. Based on Cal-OSHA’s materials, OSHA’s “Water. Rest. Shade.” program focuses on the heat index to indicate when to use suggested precautions. As part of the program, OSHA has provided employers an all-in-one publication titled Using the Heat Index: A Guide for Employers about how to use the heat index to determine “when extra precautions are needed at a worksite to protect workers from environmental contributions to heat-related illness.”

The heat index guide is “advisory in nature and informational in content,” and, as such, “is not a standard or regulation, and it neither creates new legal obligations nor alters existing obligations created by OSHA standards or the Occupational Safety and Health Act.” Even though the heat index typically does not register until the ambient temperature has reached 80 degrees F, OSHA’s heat index guide is based on four different levels – low, moderate, high, and very high to extreme.

In evaluating the heat index, OSHA recommends that employers use the National Oceanic and Atmospheric Administration heat index chart, taking the relative temperature and humidity levels to determine where it falls on the chart. Consequently, if the heat index falls in the “caution” range, employers are directed to adhere to the OSHA-provided precautions.

Heat index values were designed for shady, light wind conditions. Exposure to full sunshine can increase heat index values by up to 15 degrees F. Though the heat index guide states that full sunshine can increase the heat index values, OSHA has not provided any scientific basis for such a conclusion. Moreover, OSHA does not provide any definition as to what “direct” or “full sunshine” means, how employers should add “up to 15 degrees F” based on the sunshine, or when it should be applied. OSHA also does not provide any definition for “shady” or “light wind conditions.”

What does OSHA want Employers to Do?
OSHA’s heat index guide provides what would seem to be relatively straightforward directions as to what employers should do at any particular heat index. However, it is far from straightforward as OSHA has shown a tendency to claim that suggested protections at higher temperatures should be used at lower temperatures based on vague and undefined conditions of “strenuous work,” “full sunshine,” and “light wind.” Despite OSHA’s inconsistency on these issues, the heat index guide provides the following suggestions for employers:

• Develop a heat illness prevention program.

• Provide employee training on the heat illness prevention program, including how to recognize, prevent, and treat heat illness.

• Develop a system to monitor weather conditions on at least a daily basis and, preferably, multiple times per day.

• Provide water, shaded areas, and cooling stations for employees.

• Develop an emergency response plan in case an employee suffers from heat illness.

• Acclimatize new and returning workers.

• Develop regimented work/rest regimens for when the heat index is elevated.

• Actively supervise employees to evaluate for signs and symptoms of heat illness.

• Perform physiological monitoring.

What Is Acclimatization?
Acclimatization is the process by which individuals physiologically adjust to warmer or colder temperatures. For instance, you may notice that when you travel to a warm location for a vacation, you tend to sweat more at the beginning of the vacation than you do at the end of the vacation. The heat index guide states that, under certain temperature conditions, new workers or workers returning from time away from work should be acclimatized to the level of work.

Yet, what is considered the correct pace to acclimatize workers remains unclear. The heat index guide suggests 50 percent work per hour for the first day, 60 percent the second day, and so on until one reaches 100 percent. However, some of OSHA’s compliance officers and experts have asserted that acclimatization should begin at 20 percent work per hour (or 12 minutes per hour) and gradually increase from there. It has yet to be determined which rate is accurate.

Another issue that remains unclear is at what temperature employers should implement an acclimatization program. Under OSHA’s former heat index guide, acclimatization was not recommended until the heat index reached 91 degrees F. Under the current guide, OSHA inconsistently states that acclimatization may be required even if the heat index is below 91 degrees F. In fact, some OSHA compliance officers and experts have asserted that acclimatization should occur no matter what the ambient temperature is.

Employers may also have questions about when employees return to work from an extended absence whether due to injury, holidays, or vacation. The heat index guide states that acclimatization may be necessary if an existing employee is returning from an absence of two weeks or more. On the other hand, some of OSHA’s compliance officers and experts have asserted acclimatization should occur if an employee has been gone for three or more days. In other words, any time an employee has an extended weekend, (s)he would need to be re-acclimatized.

What Are Regimented Work/Rest Regimens?
Similar to, but distinct from, acclimatization is a structured work/rest regimen, a defined process requiring employees to rest a certain amount of time per hour. For instance, depending on the conditions, an employer should establish work/rest regimens where an employee works 45, 30, or 15 minutes per hour and then takes a break for 15, 30, or 45 minutes per hour.

Although it may seem like telling employees to take a break during a hot day whenever they experience a need to temporarily rest would be sufficient, OSHA has taken the stance that employers need to take affirmative action to ensure that employees take mandatory breaks. This involves requiring employees to sign sheets identifying when their breaks start and stop, supervisors actively monitoring the sheets to ensure the appropriate amount of breaks of sufficient duration are taken, and disciplining employees who fail to take the required amount of break.

The heat index guide does not specifically indicate how employers should actively supervise their employees. Nonetheless, it is advisable for employers to implement a “buddy system,” where employees are not left alone, so a co-worker(s) can identify if someone is suffering from heat illness and bring it to the attention of a supervisor. Also, employers have used, with great success, programs to identify new employees – such as colored hard hats, colored vests, and other markers – who may need closer observation.

What is Physiological Monitoring?
The heat index guide recommends that employers perform physiological monitoring of employees at “hot worksites.” Specifically, the guide recommends employers conduct heat exposure history evaluations, monitor employee heart rates, perform oral temperature readings, conduct body weight and body water loss measurements, perform blood pressure readings, and perform respiratory rate analyses. In other words, OSHA has asked employers to medically evaluate employees to determine which employees have “risk factors” that may make them more susceptible to heat illness.

Because OSHA has decided to rely on the General Duty Clause to enforce cases related to heat illness, there is no one answer that fits all circumstances as to what employers should do to ensure they remain fully compliant. In fact, as the recent Aldridge Electric Co. OSHA Review Commission decision shows, no matter how thorough an employer’s heat illness prevention program is, OSHA will still issue a citation, even if an unavoidable incident occurs.

Employers must take proactive steps in the face of OSHA’s use of the General Duty Clause for heat-related illness enforcement. Taking such steps now may allow the employer to avoid costly enforcement and litigation in the future.

August 2017 RENDER | back