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Sizzling summer weather makes it critical for employers to protect their employees from heat stress hazards, particularly with an expected increase in heat-related federal workplace safety citations.
The U.S. Occupational Safety and Health Administration's severe injury reporting rule, which took effect Jan. 1, 2015, requires employers to report the hospitalization of a single employee rather than three or more employees as previously required, experts said.
“A lot of these heat illness admissions to the hospital were going unnoticed by OSHA because it was one or two people and therefore they had no obligation to report it to OSHA,” said Craig Halpern, Denver-based vice president, risk control, IMA Financial Group Inc. “But now that we have the obligation to report every hospitalization, I have the feeling that they're probably seeing more and more of these, and that may be the impetus for the emphasis on it.”
In 2015, OSHA received reports of more than 200 heat-related worker hospitalizations and at least eight deaths associated with heat exposure, according to the agency.
“I would suspect we're likely to see more heat-related issues reported to OSHA,” said Charles Keller, a partner with Snell & Wilmer L.L.P. in Phoenix. “Then the inquiry becomes: "What were you doing at the job site? Were employees given the proper training? Were employees given the proper access to water? Were employees given the proper access to breaks and shade to minimize the possibility of a heat-related illness?'”
Although there is no standard governing such hazards, OSHA has cited employers in recent years for heat-related fatalities or serious injuries under the Occupational Safety and Health Act's general duty clause, which requires employers to provide a place of employment free from recognizable hazards causing or likely to cause death or serious harm.
In September 2014, Jose A. Gonzalez, OSHA's assistant area director in Mobile, Alabama, investigated heat stress conditions at an unnamed local plastics recycling facility and found workers were exposed to numerous hazards, including no controls to prevent heat exposures, no potable water, no place to cool down, inadequate ventilation and no training on heat-related hazards. When he asked the supervisor about the hazardous conditions, the supervisor said his employees were Mexicans — 95% of the employees were Hispanic — used to working in such conditions, Mr. Gonzalez told attendees of the American Society of Safety Engineers annual conference in Atlanta last week.
The employer was cited under the general duty clause for heat stress hazards, as well as for non-heat-related violations, and faced a $124,400 proposed fine ultimately reduced by about 50% after the employer took abatement actions including developing a comprehensive heat stress program, installing drinking fountains and ice machines, implementing a monthly safety meeting and hiring a local physician to educate employees on recognizing and preventing heat stress, he said.
To bring a general duty clause citation, the agency has to show there is a hazard along with reasonable steps to avoid the hazard. For heat stress safety guidance, OSHA relies on recommendations from the National Institute for Occupational Safety and Health, according to Gary Auman, director at Dunlevey, Mahan & Furry in Dayton, Ohio.
Many of the citations generated by heat stress-related fatalities or serious injuries have been deemed serious violations that carried relatively small fines, up to $7,000, but there have been instances where they were deemed willful violations worthy of higher penalties.
In September 2014, Occupational Safety and Health Review Commission Administrative Law Judge Peggy Ball upheld a willful citation issued under the general duty clause featuring a $70,000 penalty against the U.S. Postal Service after the heat-related death of a 55-year-old letter carrier, according to legal documents. The employee had been off work for five weeks with a knee injury and alerted his supervisor to feeling ill, but the supervisor did not remove the employee from his route or arrange for any assessment or evaluation of his condition. The postal service did nothing to acclimate the employee back to work.
“Willful takes a more blatant disregard for compliance — it's almost like a cavalier attitude,” Mr. Auman said. “A willful heat stress could be the kiss of death for a company from the standpoint of being unable to bid for work down the road.”
Heat stress-related penalties will increase as OSHA's civil penalty structure changes on Aug. 1, with the existing $70,000 cap for repeat and willful violations rising to $124,471 and top fines for serious and other-than-serious violations rising to $12,471 from $7,000.