Stakeholders Want Specific Guidelines from OSHA Heat Standard

By Cristina Rouvalis November 16, 2021
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Stakeholders Want Specific Guidelines from OSHA Heat Standard

​When it comes to prevention of heat-related dangers in the workplace, the Occupational Safety and Health Administration (OSHA) has always had a simple mantra: water, rest and shade. But those guidelines are about to get more complicated as the Biden administration unveils new safety standards, employment lawyers say.

"There's going to be more emphasis on indoor work, and heat standards are going to be a complex calculus—not just temperature," said Courtney Malveaux, an employment attorney at Jackson Lewis in Richmond, Va. "Extreme heat has already been a high priority for this administration before last summer, and the heat wave definitely put rocket boosters on the push."

Sometimes called the silent killer, heat-related illness is the leading cause of workplace deaths among all weather-related hazards.

"We know from climate science that heat waves are increasing in frequency, intensity and duration," said Kristie Ebi, a professor in the Center for Health and the Global Environment in Seattle.  

According to the Centers for Disease Control and Prevention, approximately 700 heat-related deaths occur annually in the United States. But Ebi said other studies suggest the number could be in the thousands or even tens of thousands. Heat-related deaths are often underreported, listed instead as heart attacks or other problems, she said.    

Agricultural workers who are paid by the piece, and thus disincentivized to take breaks, are particularly at risk, she noted. But she said workers in many industries also die from heat-related causes. "Almost all of them are preventable. We understand how bodies heat up. And we understand the interventions. People don't need to die in the heat. These are unnecessary deaths."

OSHA recently announced an Advance Notice of Proposed Rulemaking, starting a comment period "to gather diverse perspectives and expertise on topics, such as heat-stress thresholds, heat-acclimatization planning and exposure monitoring." The agency is expected to unveil new heat standards in about a year, after seeking input from stakeholders including employee safety groups, industry trade associations and individual employers.

Though no one knows yet what the new guidelines will require, some are looking to the handful of state laws mandating heat accommodations as a sign of what's to come. For example, the California Division of Occupational Safety and Health lists specific shade, rest and other requirements when outdoor temperature exceeds 80 degrees. California, Minnesota, Oregon and Washington are the only states with specific heat mandates.

As a result, in nearly every state, either federal OSHA or the state OSHA agency can cite employers for heat-related illnesses and injuries through the statute's "general duty clause." That requires employers to provide an environment free from recognized hazards that could lead to death or serious physical harm. Attempts to cite employers have not always been successful. In fact, a recent decision from the Occupational Safety and Health Review Commission demonstrates the difficulty in proving a violation under the general duty clause.

Federal OSHA cited A.H. Sturgill Roofing Company in Dayton, Ohio, for the death of a worker who collapsed on a commercial roofing job and ultimately died weeks later. In a 2-1 decision, the review commission ruled that OSHA hadn't shown a strong enough link between work conditions and the worker's death. James Sullivan, co-chair of the OSHA Workplace Safety Practice at Cozen O'Connor, was one of the commissioners who ruled against OSHA.

"We decided that OSHA didn't prove there was any prolonged exposure to the heat and that the death of the worker weeks later was not by itself evidence of a heat-related hazard," he said. "We also encouraged OSHA to issue a heat illness standard instead of continuing to attempt to prove its case through the general duty clause, which gives employers little or no guidance as to what is required of them to comply."

Employers can prepare for more-stringent standards by building heat concerns into their safety plans. 

"Until we have a finalized standard, a rule of thumb that employers can use is 80 degrees or higher, especially in indoor environments," Malveaux said. "But they'll have to take into account more than temperature and also look at air movement, radiation, humidity and employee exertion levels. So 80 degrees in a dry environment in which someone is sitting down may not be terribly hazardous. But 80 degrees in a humid environment with sun radiation and hard labor can become a hazard very quickly."

Malveaux also said indoor employers should make sure that their heating, ventilation and air conditioning systems are equipped to handle heat waves. He represented one retailer in the Northwest that was investigated by OSHA because of complaints of excessive heat indoors during the summer heat wave. While not cited, the retailer decided to close because of heat concerns.

Acclimation and geographical differences are other factors. For example, a 100-degree day in Phoenix is less taxing than a 100-degree day in Seattle, where fewer buildings are equipped with air conditioning. 

Adding to the confusion are the different and sometimes complex methods of identifying and measuring the hazards presented by excessive heat. Humidity, sun and other factors all are used to evaluate the presence of excessive heat. There are also tools to measure the level of heat at a worksite, including the National Weather Service's "heat index" as well as a wet bulb globe thermometer which considers multiple factors, such as temperature, humidity, wind speed, sun angle and cloud cover, Sullivan said.

"Currently, without a standard that clearly outlines what an employer's responsibility is to identify when a heat-stress hazard is presented at its workplace, it is difficult for an employer, especially a small employer with less than, say, 20 employees, to calculate the level of heat its employees are actually exposed to at any one time," Sullivan said. "OSHA needs to provide a clear standard which identifies what is required of such an employer instead of telling it after the fact, in the form of a general duty clause citation, that they should have calculated the wet bulb globe temperature that particular afternoon."

 Malveaux said OSHA has a heat safety app that may make determining heat risks less complicated for employers. There are also commercially available individual devices that show when an employee is at risk for heat sickness. For example, Kenzen wearable technology monitors an industrial worker's individual key physiological indicators such as core body temperature, heart rate, hydration needs and sweat rate to predict and prevent heat illness and injury.

Sullivan encouraged SHRM members to contact their trade associations during the comment period to offer their input about the new heat standards.

Cristina Rouvalis is a freelance writer based in Pittsburgh. 

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