OSHA Update—Employee Safety during the Summer Heat

13 July 2016 Labor & Employment Law Perspectives Blog
Authors: Taylor Eric White

For employers with outdoor workspaces (such as in the oil and gas and construction industries), the summer heat necessitates a delicate balance—maintaining a safe workplace and ensuring the work gets done.  Employers must address a two-fold problem in striking this balance: (1) concern for the health and safety of employees; and, (2) implementation of safety policies and practices that comply with the standards of the Occupational Safety and Health Administration (“OSHA”).  See 29 U.S.C. § 654(a).  This is especially true in light of the pending heat waves across the nation, which may lead to an increased risk of heat-related illnesses, such as heat exhaustion, heat stroke, heat rash, heat cramps, and dehydration.

OSHA encourages employers to use its heat index guidelines to provide appropriate protections to employees against these heat hazards.  Employers should remember to account for humidity and direct sunlight when using the index, if necessary.  The heat index is accompanied by certain safety measures at varying temperature ranges.  While the specific measures depend on how hot the working conditions are, the following are measures that OSHA encourages employers to implement at all heat indexes at or over 91 degrees Fahrenheit:

  • Provide drinking water with a temperature of between 50 and 60 degrees Fahrenheit;
  • Make adequate medical services available (including emergency planning and response and first aid training);
  • Plan work schedules to minimize the dangers associated with a high heat index (including allowing more frequent rest breaks to be taken and allowing strenuous activities to be performed when the heat index is lower);
  • Provide appropriate heat safety training to affected workers (including training on how to recognize symptoms of heat-related illnesses);
  • Instruct affected workers to wear sunscreen; and,
  • Gradually increase affected workers’ exposure to heat over an adequate period of time (“acclimatization”).

Of course, some situations may need to be uniquely addressed, so other safety measures may be necessary under a particular set of circumstances.  And an employer who fails to protect employees against the heat appropriately under the circumstances can end up under OSHA’s scrutiny.

While the agency has no regulations specifically addressing weather-related heat hazards in the workplace, OSHA can, and will, issue General Duty Clause citations for failure to protect employees from heat hazards.  The General Duty Clause requires every covered employer: (1) to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;” and, (2) “comply with the occupational safety and health standards promulgated under” the OSH Act.  29 U.S.C. § 654(a).  OSHA has cited employers in the past under this provision when employees are injured or become ill due to weather-related heat.

Despite the lack of regulations specifically pertaining to heat hazards, other OSHA regulations could be implicated by an employer’s failure to protect workers from weather-related heat if a heat-related injury or illness occurs.  For example, an employer may be cited for failing to train a person adequately to render first aid where an infirmary, clinic, or hospital is not in near proximity to the worksite.  See, e.g., 29 C.F.R. § 1910.151(b).  Or an employer may be cited for failing to assess and consider heat hazards when selecting the appropriate type of personal protective equipment (“PPE”) for the work to be performed.  See, e.g., 29 C.F.R. 1910.132(d).  With that in mind, it is clear that employers must consider and plan for the heat with a careful eye towards the entirety of potentially applicable OSHA regulations.

Heat, while often longed for during the cold winter months, can cause a multitude of headaches, both figuratively and literally, for employers and employees alike.  This is especially true when the weather, including the heat index, changes on a daily basis and may therefore require a constantly changing set of precautions to protect employees and comply with OSHA requirements.  If you have any questions about the application of OSHA regulations to your business or about how to address heat hazards in the workplace from a compliance perspective, an attorney knowledgeable about OSHA regulations can help you.

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