| Action | NOIRA on Heat Illness Prevention |
| Stage | NOIRA |
| Comment Period | Ended on 6/9/2021 |
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OSHA’s use of the general duty clause has proven insufficient and illustrated why specific standards are essential. As the Board conducts its investigation, it should cast a wide net to ensure maximum and sufficient coverage.
Workers can currently only seek protection from employers’ failure to protect them from heat stress through the general duty clause,[1] which requires employers to “furnish to each of [their] employees safe employment and a place of employment that is free from recognized hazards that are causing or are likely to cause death or serious physical harm to [their] employees.”[2] Though hazards can be “recognized” by common-sense, it is much harder to show the existence of a hazard not covered by regulations.[3] The agency must also show that there was a condition that “exposed employees to a ‘significant risk’ of harm that “was ‘causing or likely to cause death or serious physical harm.’”[4] As such, the general duty clause is rarely used—indeed in 2018, OSHA only used the general duty clause in 1.5% of their citations.[5]
Even when the general duty clause is used, the agency may not be able to enforce a citation; in a series of cases in front of the Occupational Safety and Health Review Commission in 2020, the administrative law judge reviewed citations under the general duty clause issued against the United States Postal Service for failure to provide sufficient protections against heat stress.[6] OSHA had relied on heat index levels created by the National Weather Service.[7] In deciding to give the chart less weight, the judge found that there had been no evidence regarding the scientific basis for the chart’s categorization, even though the reliability of the calculations were not in dispute.[8] The judge also noted that determining when the heat reached the threshold of high heat was not clear, specifically acknowledged that one cause for this difficulty is the lack of a heat stress standard,[9],[10] and thereby reversed the citations.[11],[12]
Because specific, clear standards will result in better compliance and protections, the Board should investigate as expansively as possible to include all feasible requirements. The standards the Board should adopt are not burdensome, but common sense, basic decency measures that many employers already provide; the standards would simply ensure that all employers are meeting their employees’ basic needs. Furthermore, because heat illness reduces productivity,[13] these standards help employers, too.
Although the following is not an exhaustive list, the Board should consider the following:
Acclimatization—the gradual adaptation to high temperatures—is necessary to help tolerating exposure to high heat.[14] NIOSH recommends limiting heat exposure for unacclimatized workers, and for acclimatized workers if the temperatures are higher than those for which they are acclimatized.[15] Additionally, employers should have a plan for acclimatization.[16]
Water—provided by the employer—is essential to mitigate heat stress; one should drink 8 ounces of water every 15 to 20 minutes.[17] If a worker has been working for more than 2 hours, she should be provided water and electrolytes.[18] Because, as discussed infra, workers may have incentives to not stop for water, the Board should consider how to ensure workers take advantage of water breaks.[19]
Breaks in cool, shady areas are necessary.[20] Taking breaks helps slow down the accumulation of heat.[21] The frequency and length of the break workers need depends on the total heat load, but in general should range from 15 to 45 minutes per hour.[22] As with water, how to ensure workers take advantage of breaks should be considered.[23]
Workers can be at risk of cold stress from overly cold environments, both inside and outside.[24] Like heat stress, cold stress can lead to death.[25] Many cold stress prevention measures mirror those for heat stress.[26] Although heat and cold stress are on two opposite ends of the temperature spectrum, both should be addressed to be most efficient and protect the most workers.
Workers can best protect themselves and their coworkers when properly trained about risks and prevention measures.[27] Train-the-trainer programs are useful because they reinforce the material through teaching workers how to teach their coworkers.[28]
Employers should have an emergency plan—that workers know—to use in the event of heat illness.[29] This includes how to communicate an emergency and what to do (e.g., where to take the worker, who to call, how to cool the worker down, etc.).[30]
Because of acclimatization, it is important for workers to have a cool environment at home; To allow workers to recover from the heat adequately, employers who provide housing should also provide air conditioners.
Some risk factors are tied to the individual’s health factors.[32] The employer should be sure not to violate any employee’s rights under the Americans with Disabilities Act in determining risk factors.
Other considerations may impact an employee stopping to get water or take a break; for example, many farmworkers are paid on a piece-rate system, being paid more for picking more.[33] If they take a break, they get paid less. There are reports of workers wearing diapers to not have to stop for bathroom breaks.[34] To combat this, California requires employers to calculate the piece rate excluding the break time and then use that rate to calculate the rest time rate.[35] Similarly, many workers in factories are subject to a system wherein they receive points or warnings for so-called infractions, which can include break times.[36] These workers may be wary of taking breaks. The Board should keep these countervailing interests in mind and create ways to ensure workers receive the benefits of the standards.
[1] Center for Agriculture and Food Systems, Essentially Unprotected: A Focus on Farmworker Health Laws and Policies Addressing Pesticide Exposure and Heat-Related Illness 10-11 (2021), https://www.vermontlaw.edu/sites/default/files/2021-04/Essentially-Unprotected-FINAL.pdf (last accessed June 2, 2021).
[2] Va. Code § 40.1-51.1(A); see also 29 U.S.C. § 654(a)(1).
[3] Center for Agriculture and Food Systems, supra note 1, at 11-12.
[4] Secretary of Labor v. A.H. Sturgill Roofing, No. 13-0224, slip op. at 3 (O.S.H.R.C. Feb 23, 2015), https://www.oshrc.gov/assets/1/18/A.H._Sturgill_Roofing_Inc.%5E13-0224%5EComplete_Decision_signed%5E022819%5EFINAL.pdf?8324 (internal citations omitted) (last accessed June 2, 2021).
[5] Center for Agriculture and Food Systems, supra note 1, at 12.
[6] Bruce Rolfsen, Judge Rejects Five OSHA Heat Danger Cases Against Postal Service, Bloomberg Law (July 20, 2020), https://news.bloomberglaw.com/safety/judge-rejects-5-osha-heat-danger-cases-against-postal-service (last accessed June 2, 2021).
[7] Secretary of Labor v. USPS, No. 16-1813, slip op. at 53 (O.S.H.R.C. July 29, 2020), https://www.oshrc.gov/assets/1/6/16-1813_Decision_and_Order_-_dated.pdf (last accessed June 2, 2021).
[8] Id. at 56.
[9] Id. at 64-65.
[10] A.H. Sturgill Roofing, slip op. at 8 ft nt 8 (judge made a similar observation).
[11] USPS, slip op. at 65.
[12] Id. at 70 (The judge discussed how OSHA had an obligation to show economic feasibility, but OSHA produced no witnesses as to feasibility. By engaging in a rulemaking process to create standards, the Board will be able to ensure feasibility for the requirements under the new standard.)
[13] Brenda Jacklitsch et al., Dept. of Health and Human Serv., Criteria For A Recommend Standard: Occupational Exposure to Heat and Hot Environments v (2016), https://www.cdc.gov/niosh/docs/2016-106/pdfs/2016-106.pdf (last accessed June 2, 2021).
[14] Letter from Sidney Wolfe, M.D., Founder and Senior Advisor, Public Citizen’s Health Research Group, to Loren Sweatt, Acting Asst. Sec. of Labor for Occupational Safety and Health, Dept. of Labor 7 (July 17, 2018), https://citizenvox.org/wp-content/uploads/2018/07/180717_Petition-to-OSHA-on-Heat-Stress-Signed_FINAL.pdf (last accessed June 2, 2021).
[15] Jacklitsch, supra note 13, at 2.
[16] Wolfe, supra note 14, at 29.
[17] Id. at 2, 29.
[18] Id. at 28.
[19] Rising Temperatures Intensify Risks for Florida Farmworkers, Cleo Institute (May 28, 2021), https://cleoinstitute.org/rising-temperatures-intensify-risks-for-florida-farmworkers/ (last accessed June 2, 2021).
[20] Wolfe, supra note 14, at 28.
[21] Jacklitsch, supra note 13, at 93.
[22] Id. at 2, 93.
[23] Cleo Institute, supra note 19.
[24] National Institute for Occupational Safety and Health, Preventing Cold-Related Illness, Injury, and Death Among Workers 1 (2019), https://www.cdc.gov/niosh/docs/wp-solutions/2019-113/pdfs/2019-113.pdf?id=10.26616/NIOSHPUB2019113 (last accessed June 2, 2021).
[25] Id.
[26] Id. at 3.
[27] See Wolfe, supra note 14, at 31.
[28] Trend Watch: Top 6 Benefits of Train-the-Trainer Programs, Powers Research Center (Apr. 18, 2019), https://www.powersresourcecenter.com/trend-watch-top-6-benefits-of-train-the-trainer-programs/ (last accessed June 2, 2021).
[29] Wolfe, supra note 14, at 31.
[30] Id.
[31] Univ. of Washington School of Public Health, Heat Education and Awareness Tools 15 (June 2020), https://deohs.washington.edu/pnash/sites/deohs.washington.edu.pnash/files/2020-06/HeatTrainingBook-English.pdf (last accessed June 2, 2021).
[32] Id. at 7.
[33] Cleo Institute, supra note 19.
[34] Id.
[35] California Dep‘t of Indus. Rel., Frequently Asked Questions: Piece Rate Compensation – Labor Code § 226.2 (AB 1513), https://www.dir.ca.gov/pieceratebackpayelection/AB_1513_FAQs.htm (last accessed June 2, 2021).
[36] See Annie Palmer, Amazon Has Resumed Policies That Penalize Workers for Taking Too Many Breaks, Just in Time for Prime Day, CNBC (Oct. 14, 2020), https://www.cnbc.com/2020/10/14/amazon-resumes-policy-that-dings-workers-for-taking-too-many-breaks.html (last accessed June 2, 2021).