Back to Basics is a weekly feature that highlights important but possibly overlooked information that any EHS professional should know. This week, we examine how to prepare your workers for another hot summer.
Are you ready for the above-normal heat predicted for this coming summer? Do you have heat illness prevention and heat illness response programs in place to protect your outdoor or warehouse employees?
Much of the 48 contiguous states are likely to see above-average temperatures in June, July, and August, according to the National Oceanic and Atmospheric Administration’s (NOAA) seasonal temperature outlook, released on April 18. While NOAA predicted that El Niño conditions may transition to a neutral state, it also acknowledged a 62% chance for La Niña conditions to develop by June to August.
NOAA also recently announced the availability of an experimental tool called HeatRisk. HeatRisk was developed through a collaboration between NOAA’s National Weather Service (NWS) and the Centers for Disease Control and Prevention (CDC), and it provides information and guidance about heat risks when temperatures rise.
It also provides historical context for forecasted high temperatures, identifying how unusual the heat will be for the given time of year across an area, and it covers the contiguous United States. Additionally, HeatRisk identifies temperatures that are expected to bring increased heat impacts over a 24-hour period up to seven days in advance.
The tool weighs the cumulative impacts of heat, identifying the expected duration of the high temperatures, including both daytime and nighttime highs.
The NWS first developed a HeatRisk prototype for California in 2013 and expanded it to the western United States in 2017. In its first prototype, HeatRisk thresholds were based on local climate trends, but they now include heat-health impact information from the CDC.
The information provided by HeatRisk complements heat index and wetbulb globe temperature (WBGT) data, the weather service’s established heat forecast products for measuring heat stress.
Federal OSHA’s General Duty Clause enforcement
While there’s no current federal standard for workplace heat exposure or heat illness prevention, there are state standards in California, Oregon, and Washington. Minnesota has a standard for workplace exposure to hot and cold temperatures.
The Occupational Safety and Health Administration (OSHA) does have a rulemaking to establish a federal standard for heat in both indoor and outdoor workplaces.
OSHA currently cites employers—often after heat illness hospitalizations or fatalities—using its authority under the General Duty Clause (§5(a)(1)) of the Occupational Safety and Health (OSH) Act of 1970.
OSHA’s Fort Lauderdale, Florida, area office recently cited a farm labor contractor following the heatstroke death of a migrant sugar cane farmworker. The 26-year-old worker, hired by the farm labor contractor under the federal H-2A visa program for temporary or seasonal workers, traveled from Mexico to South Florida for the job on a sugar cane farm near Loxahatchee.
The worker suffered fatal heat-related injuries while working in an open field as the heat index reached 97 degrees. OSHA investigators learned that the worker, sitting atop stacks of sugar cane on a trailer as he tossed them to the ground for planting, began experiencing symptoms consistent with heat-related illness and complained of not feeling well. He soon collapsed.
The sugar cane field, about an hour west of West Palm Beach, was 20 minutes from the closest road and 22 miles from the hospital where he was transported and where he later died, stricken by heatstroke.
According to the CDC’s National Institute for Occupational Safety and Health (NIOSH), heatstroke is the most serious heat-stress illness and occurs when the body can no longer control its temperature. The body’s temperature rises rapidly (it can rise to 106° Fahrenheit (F) or higher within 10 to 15 minutes), sweating mechanisms fail, and the body is unable to cool down.
If treatment is delayed, heatstroke can be fatal. In addition to a very high body temperature, symptoms can include confusion, altered mental status, slurred speech, coma, or seizure.
In the Florida case, the agency proposed penalties of $27,655.
Two years ago, OSHA cited another Florida-based employer following an employee’s heat-related death in the Apalachicola National Forest. A supervisor saw a 42-year-old member of a crew assigned to clear invasive plants sweating heavily; his hands were trembling, and the worker seemed confused and unable to respond to commands.
The worker rested while other employees finished their work. The supervisor returned 30 minutes later to find the man unresponsive. Without a cellphone signal, workers had to get help from a ranger station 14 miles away from the jobsite to call for assistance.
By the time an ambulance became available, the worker had stopped breathing, and responders found no pulse. The worker was transported to a hospital, where doctors pronounced him dead.
OSHA’s Jacksonville, Florida, area office cited the employer with serious violations of the medical services and first-aid standard, as well as the General Duty Clause of the OSH Act. Investigators determined that the employer failed to provide first aid to employees working in a remote area of the forest, where there was no clinic, hospital, or infirmary nearby in the event of severe injury or illness.
In 2019, OSHA’s Omaha, Nebraska, area office cited an Anson, Maine, employer for failing to have a certified person to perform first aid on a jobsite in Inman, Nebraska, after a worker’s heat-related death. The employer was also cited with a violation of the OSH Act’s General Duty Clause.
The worker in a crew inspecting and maintaining utility poles collapsed after working 12 ½ hours and was pronounced dead from hyperthermia, with a body temperature of 106.3° F.
Heat citations vacated by the Review Commission
The Occupational Safety and Health Review Commission has repeatedly vacated OSHA’s heat illness citations and expressed skepticism of the agency’s General Duty Clause enforcement.
Last year, the commission vacated four OSHA citations of the U.S. Postal Service (USPS) for letter carriers exposed to excessive heat in Benton, Arkansas; Houston and San Antonio, Texas; and Martinsburg, West Virginia. The commissioners concluded that OSHA failed to identify economically and technically feasible prevention measures the USPS could have taken.
A fifth USPS case was sent back to a commission administrative law judge (ALJ) when the panel concluded that a Des Moines, Iowa, station failed to provide heat safety training for city carrier assistants (CCAs).
The commissioners concluded that the USPS can’t afford time-based interventions that include acclimatization, reducing time outdoors, and work/rest cycles, relying on USPS officials’ predictions that the organization would “run out of cash” in 2024.
OSHA issued the USPS five citations between September 2016 and January 2017, alleging that it committed repeat violations of the OSH Act’s General Duty Clause by exposing employees to “excessive heat” hazards. In each case, a letter carrier began feeling ill while delivering mail and was treated at a hospital or an urgent care clinic.
The commission uses a series of tests in reviewing challenges to General Duty Clause violations. The Department of Labor (DOL) must show that work conditions or activities pose a health or safety hazard, the employer or its industry recognizes the hazard, the hazard is likely to cause death or serious physical harm, and feasible and effective means exist to eliminate or reduce the hazard.
The USPS challenged whether OSHA’s recommended means of abatement were economically feasible. The DOL countered that the USPS’s losses are only “paper losses” and that the organization is unlikely to go out of business because it’s a “quasi-governmental agency” and Congress would prevent the USPS from going under.
In 2019, the commission vacated OSHA’s citation of a roofing contractor following a worker fatality. The commissioners chastised the agency for its use of General Duty Clause enforcement, calling it a “gotcha” or “catchall” for hazards with no established standards.
In that case, a temporary employee, a 60-year-old man with preexisting conditions that included congestive heart failure and hepatitis C, collapsed and began shaking on a jobsite. The man was diagnosed with heatstroke at a hospital and died 3 weeks later.
The commissioners disagreed with OSHA’s conclusion that an excessive heat hazard existed at the time of the worker’s collapse. When work began, the temperature was approximately 72°F, with 84% relative humidity. When the worker collapsed, the temperature was approximately 82°F, with 51% relative humidity.
The commission acknowledged difficulties that employers face in addressing hazards like excessive heat when there are no established federal standards. The commissioners pointed out that the rulemaking process itself gives employers proper notice of their obligations in the workplace.
Federal rulemaking
OSHA is working to address the lack of a federal heat illness prevention standard. In 2021, the agency issued an advance notice of proposal rulemaking (ANPRM) for heat injury and illness prevention in outdoor and indoor work settings.
The agency cited the commission’s 2019 decision (Secretary of Labor v. A.H. Sturgill Roofing, Inc.) as a factor in its rulemaking, saying that “it is likely to become even more difficult to protect workers from heat stress under the general duty clause in light” of the commission’s decision.
OSHA asked the public for information about heat-related issues it should consider in developing a standard, including the scope and application of the standard and what types of controls should be required.
A federal heat standard could apply to hundreds of industries. When it issued its proposal, OSHA noted 789 heat-related hospitalizations and 54 heat-related fatalities across nearly 275 industries among the agency’s inspections and violations cited. Employers in over 230 industries with indoor and outdoor work settings have had at least one heat-related OSHA inspection since 2018, the agency reported.
A federal standard could even apply to small businesses. An assessment of workplace heat-related fatalities found that almost half occurred in “very small establishments” with fewer than 10 employees.
OSHA inquired about the best metric for defining and assessing heat hazards—ambient temperatures, heat index, or WBGT.
The agency also wanted to know about the elements of successful employer-implemented heat injury and illness prevention programs, such as both engineering and administrative controls, acclimatization protocols, and monitoring methods, that OSHA could include in a federal standard. The agency also was interested in the best planning and response practices for heat-related emergencies.
Since issuing its ANPRM, the agency has opened and closed a Small Business Regulatory Enforcement Fairness Act (SBREFA) review and is analyzing the SBREFA report. The agency has not yet set dates for further action.