The problem of heat-related illness in the workplace gained fresh prominence when President Biden made a public display of ordering the federal government to create new regulations and launch enforcement actions to address the issue.
As a result, on Sept. 20, OSHA issued an updated heat illness enforcement initiative to guide heat illness inspections and to inform employers about what is expected of them from regarding prevention.
Illnesses arising from excessive heat have gotten special attention in recent years from labor unions seeking to organize workers in the nation’s warehouse and distribution center operations that have grown enormously as a result of the ecommerce revolution.
The highest profile targets have been Amazon and Walmart, whose employees thus far have successfully resisted the organizers’ best efforts.
Linking the government’s actions to another top Biden priority, the White House cited increasingly hot weather stemming from climate change as a prime motivator, noting “heat’s increasing threat to the lives and livelihood of Americans, especially workers, children and seniors.”
The Biden administration’s announcement explained that the Department of Labor was launching a multi-prong initiative on occupational heat exposure “to protect outdoor workers, including agriculture, construction and delivery workers, as well as indoor workers, including those in warehouses, factories and kitchens.”
Secretary of Labor Marty Walsh said, “Throughout the nation, millions of workers face serious hazardsfrom high temperatures both outdoors and indoors. Amid changing climate, the growing frequency and intensity of extreme heat events is increasing the dangers workers face, especially for workers of color who disproportionately work in essential jobs in tough conditions.”
Earlier this year Acting OSHA Head Jim Frederick said his agency was at work on a new heat standard.
He explained, “While agricultural and construction workers often come to mind first when thinking about workers most exposed to heat hazards, without proper safety actions, sun protection and climate-control, intense heat can be harmful to a wide variety of workers indoors or outdoors and during any season.”
OSHA stated clearly that the industries that will receive special attention are warehousing, transportation, commercial construction, landscaping, manufacturing and waste management.
OSHA also will undertake an enforcement initiative focusing greater effort on workplace inspections to take place for those days in which the heat index exceeds 80 degrees F. While OSHA prepares a new rule, the agency will rely on the General Duty Clause as the basis for enforcement actions.
Also planned is a National Emphasis Program based upon a heat illness Local Emphasis Program in OSHA Region 6, which includes the states of New Mexico, Texas, Oklahoma, Arkansas and Louisiana.
OSHA also was directed to form a Heat Illness Prevention Work Group within the agency’s National Advisory Committee and Occupational Safety and Health to conduct research to provide “better understanding of challenges and best practices in protecting workers from heat hazards.”
There is nothing new about these concerns. A number of states have adopted strict heat standards, including California, Oregon, Washington and Minnesota, which currently enforce regular or emergency heat stress standards for workplaces.
Due to a tight labor market, many employers are bringing in new or returning workers who are not used to working in the heat, point out attorneys for the Seyfarth Shaw law firm.
“Many of these individuals are also required to wear face masks while working, which can exacerbate heat exposures,” they contend. “New and returning workers, who are not used to the physical stresses of the job, face the greatest risks of heat illness. As with any physical activity, workers build a tolerance to working in the heat over time.”
Attorneys Robert S. Nichols and Amber K. Dodds of the Bracewell LLP law firm urge employers to:
• Review your existing programs intended to protect employees working either in indoor environments without air conditioning or any outdoor locations, from heat hazards.
• Be careful to comply with state heat standards applicable to any of your workplaces, such as in California, Oregon, Washington and Minnesota.
• Consider utilizing the state heat hazard standards, such as the California or Oregon standards, as a benchmark for how strong your heat hazard protection programs are generally.
• Carefully follow upcoming developments from OSHA, both in the rulemaking and enforcement arenas, in assessing the adequacy of your heat hazard programs.
