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Republished with permission. © 2015 Jackson Lewis. All rights reserved.
When the outdoor temperature tops 80 degrees Fahrenheit, the cool, air-conditioned comfort of a retail store may be a refuge for salespeople, but it is easy to forget that many other retail employees (including truck drivers, loaders, mechanics, janitors, maintenance personnel, cart attendants, and warehouse crews) may be feeling the heat in their workplaces.
Hot working conditions are no longer just about comfort. They also can trigger enforcement proceedings and penalties as state and federal officials focus on heat illness. While the federal Occupational Safety and Health Administration (OSHA) has no specific heat illness standard, its enforcement of the Occupational Safety and Health Act’s “general duty clause,” a catch-all provision requiring employers to provide a “place of employment . . . free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees,” can include heat illness.
For the last several years, OSHA’s nationwide Heat Illness Prevention Campaign has offered training, resources (including a downloadable mobile app for employees), and the promise of enforcement when employers do not plan for and prevent employees' exposure to excessive heat. At the same time, California law and Cal-OSHA regulations have led the way with a heat illness statute, standard, and complementary state labor code requirement to include cool-down recovery periods during meals and rest breaks. The heat illness standard is one of the most frequently cited standards by Cal-OSHA against employers.
Cal-OSHA and federal OSHA have identified steps they expect employers to follow in order to address hot weather working conditions, particularly when the temperature rises above 80 degrees Fahrenheit. Employers must create a plan, train employees, monitor the weather, and implement protective measures.
Develop a Heat Illness Prevention Plan
A heat illness prevention plan, tailored to each company’s operations, is the employer roadmap for preparing for and responding to hot weather working conditions. It should provide a plan of action, triggered by certain temperatures and weather conditions, to ensure that employees receive sufficient water, shade, and rest.
California’s requirements offer a good starting point. The plan must be specific in addressing hot conditions and describing action steps. It should be in English and in any additional language(s) understood by the majority of affected employees. The plan should cover how the employer will provide water and access to shade, high heat procedures, emergency response procedures, and acclimatization methods and procedures for specific operations that may involve excess heat exposure. (In California, the plan may be part of a comprehensive injury and illness prevention plan.)
Provide Enough Water
A key element in avoiding employee heat illness is staying hydrated. This can be more challenging in some jobs than others. If employees travel or spend time outdoors extensively, it may be difficult to supply them with continuous access to drinking water. In that case, employers should plan for fluid replenishment throughout the day at various locations or supply employees at the beginning of the shift with the expected amount of water they will need throughout the work day (at least one quart per employee per hour). Emergency procedures should be addressed, too.
The water provided should be potable, which means it should be fresh, pure, suitably cool, and free of charge to the employees. It should be located as close as possible to employee work areas.
Indoor Work and Ample Shading to Cool Off
To the extent that employees work indoors, enforcement agencies expect the employer will use whatever engineering solutions are feasible to protect employees. Additional ventilation or cooling systems may be necessary in poorly ventilated areas or areas that are not air conditioned. In such cases, industrial fans, thoughtfully arranged, and window or door openings can make a significant difference.
It may not be possible, however, to keep some employees out of the sun while they work. In that event, enforcement agencies expect employers to provide workers with opportunities for shade whenever the temperature tops 80 degrees. Employers creating a heat illness prevention plan should analyze their work sites and areas to develop enough shade areas to accommodate the total number of employees during recovery, rest, and meal periods. That may mean one or more areas large enough for all employees, especially if there are insufficient indoor recovery or break areas. The shade area should be located as close as possible to employee work areas.
Encourage Preventive Cool-Down Rest Periods
Even when working a full shift outdoors or in other hot locations, employees can stay cool and avoid heat illness if they take periodic breaks to cool down. The heat illness prevention plan should allow and encourage employees to take a minimum of five minutes for a cool-down rest period if they feel the need to prevent overheating.
The plan also should require supervisors to monitor employees’ wellbeing in the heat, asking employees how they are doing and encourage them to take breaks in case of heat illness symptoms. If employees on a break show signs of heat illness, supervisors should encourage them to stay in the shade, and may not order them back to work until the heat illness symptoms are gone. In California, employers face penalties if they require employees to work during recovery periods.
Employers should review and update handbooks, policies, and employee training to ensure that everyone understands these expectations and requirements. They should make sure that the workforce understands the signs of heat illness and the methods of acclimatization, how to prevent heat illness with shade, breaks, and water, and how to use first aid or emergency response should heat illness occur.
Be clear with employees that they have the right to these protections and that they will suffer no retaliation for exercising these rights. OSHA, Cal-OSHA, and others provide extensive training materials and information on their websites.
Special Plans for Particularly High Heat
Special attention is necessary when temperatures top 95 degrees. Supervisors should hold pre-shift meetings before employees begin work to review the high heat procedures, encourage employees to drink plenty of water, and remind everyone of the right to take a cool-down rest when necessary.
The heat illness prevention plan should ensure a reliable means of communication so that supervisors can advise employees about weather conditions and employees can contact supervisors for assistance or relief. In such extreme temperatures, enforcement agencies expect the employer to have a mechanism for observing employees for alertness and signs or symptoms of heat illness. This may mean limiting the number of employees assigned to each supervisor to no more than 20, pairing employees to work in a buddy system, or using electronic communications devices for regular check-ins and emergency calls.
At least one employee should be authorized to call for emergency medical services at each work site. Other employees should know that any one of them can call for emergency services when no designated employee is available. The plan also should include an effective emergency procedure, including the following: (1) an effective communication with employees by voice, observation, or electronic means; (2) an effective response with first aid measures; and (3) procedures for contacting emergency responders to help stricken workers.
Preventing heat illness also requires special attention to changing conditions, whether it is changing weather or employees changing job environments. For instance, enforcement agencies expect employers to closely observe employees during heat waves, which is any time temperatures exceed 80 degrees or anytime the temperature is 10 degrees higher than the average high daily temperature in the preceding five days. Likewise, the plan should require close monitoring of an employee who is new to the company, or working in a high heat area, for at least the first 14 days in those conditions. Anytime there is a drastic change in weather, employers should be on high alert to watch for heat illness.
Now is a good time to review or put in place an effective heat illness prevention plan, as well as training and communications plans, to prepare your workforce for the next hot season.
Bradford T. Hammock and Avi Meyerstein are attorneys in the Washington, D.C- region office of Jackson Lewis. Alka Ramchandani is an attorney in the firm’s San Francisco office.
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