As seasonal temperatures climb, employers must consider their potential liabilities for not protecting employees against the
hazard of heat. This hazard can involve employer legal duties under many laws, including:
• OSHA (Occupational Safety and Health Act), State OSHA regulations
• Americans with Disabilities Act
• Criminal Law
• Workers’ Compensation
• Third-Party Liability (Outside Contractors)
OSHA Liability – Federal
While federal OSHA does not have a standard relating to the hazard of heat, it regulates the hazard of heat exposure in the workplace under the General Duty Clause (Section 5(a)(1)). Heat is a “recognized” hazard to human safety and health. Its impact on employees ranges from nausea to death, depending upon exposure. OSHA requires employers evaluate whether a heat hazard exists by evaluating the temperature and humidity conditions within the workplace. If a heat hazard exists, employers must develop means and methods to protect employees from heat hazards. These range from changes in work practices (rest breaks, job rotation), to personal protective equipment (cooling vests) to engineering controls (ventilation, cooling rooms). Employers who fail to take such steps are subject to citations and monetary penalties.
When an employee becomes incapacitated by heat and requires medical treatment, loses consciousness, has days away from work or restricted duty – or dies – this information must be recorded on the OSHA 300 Log. Widespread heat related illnesses may prompt an employee to contact OSHA, resulting in an on-site inspection. Heat-related illness can temporarily diminish an employee’s mental capacity and physical coordination, excessive heat can cause employees to lose focus or muscle control injuring themselves or co-employees. This is a particularly acute problem when operating mechanized equipment or working around hazardous machinery. OSHA also mandates there be adequate First Aid assistance to provide emergency medical assistance to heat stricken employees which must either be provided by the employer or reasonably available from third party responders (e.g., EMTs, fire department) within three to five minutes.
State Regulation – California
California has promulgated a regulation for Heat Illness Prevention (T8 CCR §3395) which contains extensive requirements to protect employees who may be exposed to the hazard of heat illness.The regulation was intended to apply to agricultural employment, but the Division of Occupational Safety and Health has attempted to expand its application beyond such employment activities. The regulation includes requirements for the following:
- potable drinking water, at least one quart per-hour per- employee for drinking for the entire shift
- access to shade at all times if an employee is suffering from heat illness or believes that a period of preventative recovery is needed
- extensive requirements for training of supervisory and non-supervisory employees on the hazards of heat illness, reporting illness to the employer, signs and symptoms of heat illness
- providing of emergency medical services
- specific training for supervisors regarding procedures the supervisor must follow when an employee exhibits symptoms of heat illness, including emergency response
Personal Protective Equipment – A Heat Hazard
OSHA regulations require that employees in many workplaces wear personal protective equipment (PPE). Often overlooked is that PPE can create a heat hazard. For example, employees in a foundry may be required to wear flame retardant clothing or painters in a spray booth may wear protective clothing. Either of these activities can prevent the release of an employee’s body heat thereby causing the employee’s internal temperature to rise. In developing a heat illness program, the employer must consider the possibility that PPE will create heat hazards.
Americans With Disabilities Act (ADA)
Employees react to heat in a unique fashion. This reaction depends upon the individual’s physical characteristics or health. For example, an employee’s ability to tolerate heat can depend upon a combination of some or all of these factors:
- Medication
- Obesity
- Cardiovascular Conditions
- Diabetes
- Use of Alcohol or Drugs
- Other Medical Conditions
It is likely that employers are unaware of a number of these conditions because of restrictions imposed by the ADA. A program to protect employees against heat illness must be designed to determine whether employees require assistance at work because of their personal health conditions, without violating the ADA. In this regard, the employer has a right to inquire as to whether employees may need assistance to protect them against hazards to their health in order to comply with OSHA.
In the event an employee actually sustains a heat-related illness, the employer has the right to require the employee undergo fitness-for-duty evaluation to determine whether the employee can continue to perform the essential functions of the job with or without an accommodation. In addition, the employee’s inability to tolerate the heat may create a “direct threat” to the employee’s safety or health, as well as to the safety or health of other employees who may sustain injury by reason of the affected employee’s inability to operate machinery or perform critical plant operations, which may require the employer to disqualify the affected employee from performing the particular job.
Criminal Liability
An employer also faces potential criminal liability for failing to protect employees against heat hazards. In Illinois, an employer was criminally prosecuted because employees were exposed to high levels of heat resulting in injury. In People v. Chicago Magnet Wire Corporation, 126 Ill.2d 356 (1989), the Illinois Supreme Court held a corporation and its officers and agents could be indicted for aggravated battery and reckless conduct for exposing employees to inadequate ventilation and dangerously overheated working conditions. In this case, employees were utilizing steam and chemicals to clean electric motors. Temperatures in the plant reached 140° F and employees became nauseated and ill from the exposure.
Workers’ Compensation
In the event an employee sustains a heat-related illness, the employer will face Worker’s Compensation liability. The gravity of the claim may be substantially enhanced if the employee is overcome while operating machinery and sustains injury by falling into or off of the equipment.
Third Party Liability (Outside Contractors)
An employer’s liability may extend to employees of third-parties on the worksite if they are exposed to heat hazards. If these employees can establish that the employer was in a position to control the hazard to which they were exposed and failed to take appropriate action, liability may attach. This derivative liability can arise under OSHA’s multi-employer workplace doctrine or under state law premises liability doctrines.
Compliance Recommendations
Heat illness can be very insidious. For example, an employee who is sweating heavily can lose up to 6 quarts of water in a workday –approximately 13 pounds! In high heat atmospheres, normal heat responses, like thirst, are inadequate. By the time the body signals its thirst, the individual is already partially dehydrated. In order to prevent heat illnesses, the employer should develop a program which includes the following elements:
1. Hazard Identification – Identify potential heat hazards
2. Hazard Correction – Correct, or reduce the heat hazards identified
3. Employee Training to encompass:
– Description of various types of heat illness
– Information on how heat illness occurs, including:
a) environmental conditions
b) working conditions
c) individual employees health conditions or workpractices
– How to recognize the signs and symptoms of heat illness
– Duty to promptly report if the employee has signs of heat illness
– Documentation of the training
4. Supervisor Training
– Train supervisors to recognize the signs and how torespond
– Explain employer’s program and how to implement it
5. First Aid – Adequately train and provide readily available first aid
Conclusion
An employer following these recommendations will substantially reduce its potential liability associated with heat illness.