As summer approaches, employers with employees potentially exposed to high temperatures should ensure that they have taken the necessary steps to protect their employees from heat-related illnesses. Employees who might be exposed to high temperatures include not only employees working outdoors, but also employees working in indoor environments with high temperatures, such as warehouses without air conditioning. The federal Occupational Safety and Health Administration (OSHA), and its state counterparts, have recently devoted significant focus to heat stress guidance and enforcement of heat stress violations (i.e., citations with monetary penalties). In fact, a growing number of states have implemented specific, and sometimes detailed rules, governing employee occupational exposure to heat with which employers must comply.
Federal OSHA Guidance on Heat Stress
Although OSHA has announced its intention to promulgate a proposed rule addressing employee protection from heat-related illnesses, no such rule has yet been published. Nevertheless, even in the absence of a specific OSHA rule detailing what an employer must do to protect its employees from heat-related illnesses, OSHA may issue citations to employers for employee safety issues related to heat stress under the "general duty" clause of the Occupational Safety and Health Act of 1970. Under the general duty clause, OSHA may cite employers for failing to furnish their employees with a place of employment free from recognized hazards of a serious nature, meaning hazards that cause or are likely to cause death or serious physical harm. OSHA has historically cited employers under the general duty clause for heat stress violations and is likely to continue to do so.
Over the years, OSHA has issued a range of guidance for employers on creating programs to protect their employees from heat-related illnesses. As an initial matter, OSHA does not recognize a specific temperature at which employers must begin to take steps to protect employees from heat-related illnesses. Instead, it takes the position that an individual's clothing, workload, and body weight must all be considered in making that determination. By way of example, OSHA maintains that an employer should begin taking steps to protect an individual of normal weight, wearing standard work clothing, from heat stress when the temperature reaches 80 degrees Fahrenheit. OSHA asserts that if the same employee were "obese," the employer should begin those steps when the temperature reaches 74 degrees. OSHA provides no guidance on how an employer would be able to legally or practically implement such a weight-based requirement—and we do not recommend that employers do so.
Some guidance issued by OSHA regarding preventing employee heat-related illnesses is impractical and potentially unlawful. For example, OSHA suggests that employers should consider monitoring employee pulse rate and body temperature throughout the workday. OSHA helpfully notes that employers should consider using oral, skin, or aural (ear) thermometers as they are "are less invasive than core body temperature measurements." Regardless of the method, such routine monitoring of a workforce throughout the workday is likely impractical for most employers. Further, obtaining such information from employees may create risk of liability under other laws governing employment, including the Americans with Disabilities Act and state law equivalents.
On the other hand, OSHA has provided examples of some specific steps it believes employers should take which are practical and useful, including:
- Designating a person with appropriate training to be responsible for the employer's heat illness prevention program;
- Identification of the temperature at which the employee protection elements of the heat illness prevention program are implemented;
- Providing cool drinking water to employees and encouraging employees to drink one liter of water per hour;
- Providing access to shade or air-conditioned areas to allow employees to rest and cool down;
- Providing an acclimatization period of two weeks for new employees working in high temperatures through gradually increasing workloads;
- Considering alternative work schedules to reduce employee exposure to heat;
- Training employees on the health effects of heat, the symptoms of heat illness, how and when to respond to symptoms, and how to prevent heat illness; and
- Having a plan for monitoring employees for signs of heat illness, and a plan for emergency response to any employee experiencing heat illness.
Any employer with employees exposed to high temperatures should develop a written program in line with these basic guidelines and document its training of employees.
State OSHA Heat Stress Standards and Guidance
In twenty-two states, a state agency has taken over responsibility for private sector employer occupational safety and health enforcement from federal OSHA. Currently, California, Oregon, Washington, Minnesota, and Colorado have all enacted standards imposing specific heat-related illness prevention stress requirements on employers that operate in those states. The requirements vary widely by jurisdiction. For example, the regulations in Washington and California cover only outdoor workers, the regulation in Oregon covers outdoor and indoor workers, the regulation in Minnesota covers only indoor workers, and the regulation in Colorado only covers agricultural workers. In addition, Maryland and Nevada have proposed regulations imposing heat-related illness prevention requirements for both indoor and outdoor workers, but the rules have yet to be finalized and adopted. Further, California has a proposed rule to expand the coverage of its heat stress standard to indoor workers, and Washington State has issued a proposed rule significantly expanding the scope and requirements of its heat stress standard.
Each of these states also has (or will have) varying substantive standards and thresholds. For example, California's requirements for heat stress prevention begin at 80 degrees but increase at 95 degrees, Oregon's requirements begin at 80 degrees but increase at 90 degrees, Washington's requirements begin at 89 degrees for most workers but at 52 degrees for employees wearing nonbreathable clothing, and Maryland's proposed requirement would begin when the heat index reaches 88 degrees if "external influencing factors increase[] the potential for serious heat-related illnesses." Employers should also ensure that they are utilizing the correct temperature measurement for their programs as the temperature measurement must be taken in the manner mandated by the state regulations. For example, Maryland's proposed regulation uses the heat index temperature, which is a combination of the air temperature and humidity.
While each state has different standards for compliance, they generally share certain core requirements including employee and supervisor training; provision of water, shade and rest breaks; acclimatization; monitoring; and an emergency response plan. Nonetheless, the steps required by OSHA, and state occupational safety and health agencies to protect employees from heat stress diverge in material respects and employers must ensure that they follow the applicable requirements. If an employer has employees potentially exposed to high temperatures, they should begin taking steps now to ensure that they protect their employees from heat-related illnesses and comply with the specific occupational safety and health requirements applicable to their operations.
Venable LLP will continue to monitor developments in this area and provide updates as they arise. In the meantime, if your organization has any questions about protecting employees from heat-related illnesses, or complying with occupational safety and health obligations generally, please contact the authors of this article or any attorney in Venable's Labor and Employment Group.