A Hot Safety Issue
By Adele L. Abrams, Esq., CMSP
"Hot town ... Summer in the city ..."
After the horrendous winter that many parts of the U.S. experienced, the coming of summer is certainly welcomed by most of us. But along with the prospects of picnics, beach trips and barbecues comes something less desirable: the potential for heat stress related illness on the job. Soon, temperatures will climb into the 80s, 90s and even triple digits in most parts of the country, so heat stress is an issue that employers will have to address whether they are in Massachusetts or on Maui.
Why is this a workplace concern? Simply put, heat can make workers ill or even kill them, and OSHA will hold the employer responsible. The pallet Industry has many job tasks that could put workers at risk, especially if they are stacking pallets outside in direct sun, operating forklifts to load trucks outside, or even working inside where there is inadequate air conditioning or ventilation and where hot machinery can add to inside temperatures. Persons providing landscaping services at pallet facilities may also be at risk.
The factors that may cause heat-related illness include: high temperatures and humidity, low fluid consumption, direct sun exposure with no shade, limited air movement (no breeze), physical exertion, use of bulky clothing and equipment, poor physical condition, pregnancy, some medications, lack of previous exposure to hot workplaces, or a history of heat-related illness.
Exposure to excessive heat can cause heat stroke, where the worker's body temperature rises to levels above 104 degrees and can result in death if not treated promptly. Signs include confusion, loss of consciousness and seizures. Workers suspected of having heat stroke should be moved to shady, cool areas, wet down with cool water and cold cloths, or ice around the body and wetting clothing with cold water. Lesser conditions include heat exhaustion, heat cramps and heat rash, but all such conditions require treatment and should be taken seriously.
OSHA has a free application for mobile devices to enable workers and supervisors to monitor the heat index at their workplaces. It is available for both Android and iPhone devices and can be downloaded at www.osha.gov/heatapp.
During a recent briefing at OSHA, a senior official noted that the main issues cited by the agency under Section 5(a)(1) of the Occupational Safety and Health Act – the "General Duty Clause" (GDC) – are heat stress, workplace violence and ergonomic hazards. The fines for willful violations can reach $70,000 per affected worker, and if a heat stress citation relates to a worker's death, criminal sanctions can also be imposed on the employer. The GDC requires all employers to provide a workplace free from "recognized hazards" that cause or are likely to cause death or serious physical harm, and the GDC is cited when OSHA lacks a specific standard on the subject. Due to the outreach that the agency has done on the subject of heat stress, this falls within the purview of GDC enforcement.
OSHA has posted a few examples of its enforcement actions on the agency website (www.osha.gov):
- In 2012, OSHA cited Waste Management and Labor Ready Northeast in New Jersey for serious GDC violations after a worker died of heat stress while working on a truck collecting trash. The violation cited failure to ensure that workers consumed adequate amounts of fluids during elevated heat conditions, and failure to train workers on how to recognize and respond to signs of heat stress. In this case, both companies were cited because the labor agency provided the personnel, and the garbage company provided oversight of workers while they performed duties. In each case, the maximum OSHA penalty for serious violations was imposed. The citation was abated by implementation of a heat stress management program.
- In 2012, OSHA cited LH Mauser & Sons, a Maryland-based milling and paving company following another heat-related fatality, which occurred while a worker was paving a church parking lot in Washington, DC. The violation involved failure to provide a program addressing heat hazards related to outdoor work in direct sunlight. The employer did not maintain a work/rest regimen, train employees on prevention of heat stress, or ensure that employees consumed adequate amounts of water. The company also was cited for failing to report the fatality to the agency within the required eight hours (some "state plan" states have even more stringent reporting requirements than federal OSHA).
- In 2013, a Pennsylvania roofing company, United States Roofing Corp., also received the maximum OSHA penalty for exposing employees to heat hazards while engaged in roofing activities at a middle school. On the day of the inspection, the workers were in direct sun while the heat index was 105 degrees. The fact that they worked with hot tar magnified the hazards. As in the previous cases, the employer was faulted for lack of a protective regimen and failure to train workers on precautionary measures against heat-related illness. Unlike the other cases, no fatalities occurred, but the maximum penalty was still imposed.
In terms of prevention, OSHA promotes including a heat stress management program as part of the employer's safety and health management program. It should include, but is not limited to: (1) a work/rest regimen that includes a provision to allow workers to become acclimated to extreme heat conditions; (2) scheduling outside work during the cooler portions of the day, where feasible; (3) providing cool potable water and encouraging water consumption of 5 to 7 ounces every 15 to 20 minutes; and, (4) establishing a screening program to identify workers with health conditions aggravated by exposure to heat stress (some medications can also place workers at higher risk of heat-related illnesses). Moreover, all workers should receive training on heat stress prevention, including temporary workers that may be retained through employment agencies or union hiring halls. Training must be conducted in a language that workers can understand, and if work instructions are (for example) given in Spanish, then safety training must also be provided in that language.
The employer should also have specific procedures to be followed in the event of heat-related emergencies. It is also critical that, if the employer is located more than a few minutes away from an emergency medical facility, someone be trained on first aid measures so care can be rendered to heat stress victims that will be effective until emergency responders can arrive. Delays can be a matter of life and death!
In addition to citations issued under the GDC, there are other OSHA standards that can be cited relative to occupational heat exposure. The personal protective equipment (PPE) standard, 29 CFR 1910.132(d) requires every employer in general industry to conduct a hazard assessment (which should be documented in writing) to determine the appropriate PPE to protect workers engaged in various tasks. PPE must be provided to workers at the employer's expense. There are many items on the market that can help cool workers, including headbands and work vests with cold packs inside that retain their coolness for hours. Employers can also provide engineering controls, such as air conditioning or shaded areas and allow frequent rest breaks or worker rotation.
OSHA requires that heat-related illnesses that result in medical treatment, restricted work activity or lost workdays to be recorded on the OSHA logs and failure to do so will result in citations under 29 CFR 1904.7. As noted above, OSHA also mandates first aid accessibility under 1910.151.
OSHA also provides outreach to employees, through unions, community organizations and even churches. So employees who are aware of hazards and are not protected adequately can file confidential complaints with OSHA and this will trigger an inspection. About 30 percent of OSHA inspections are complaint-initiated! Employers are barred by Section 11(c) of the OSH Act from retaliating against workers who notify OSHA of hazards or who lodge safety complaints internally to company management.
OSHA has launched a campaign to prevent heat stress illness and death, and more information can be found at www.osha.gov/heat. The agency also has a free application for mobile devices to enable workers and supervisors to monitor the heat index at their workplaces. It is available for both Android and iPhone devices and can be downloaded at www.osha.gov/heatapp. This summer, play it cool and keep workers safe!
(Article published in PalletCentral Magazine, May-June 2014)
Adele L. Abrams is an attorney and safety professional who represents companies in litigation with OSHA and provides safety training and consultation. The Law Ofice of Adele L. Abrams PC has three offices: Beltsville, MD; Denver, CO; and Charleston, WV.