May 31 is National Heat Awareness Day, according to OSHA and the National Weather Service. This year, the day falls at a time when the rules about preventing heat illness may be in flux. In fact, after OSHA lost a recent case to use its general duty clause to make heat exposure enforceable, state and federal authorities are talking about creating a heat stress regulation.

The OSHRC decision

In a 2-1 decision by the OSHRC in the case Secretary of Labor v. A. H. Sturgill Roofing, Inc., the majority reversed an earlier ALJ decision and vacated an OSHA citation for violation of the general duty clause of the OSH Act for an excessive heat hazard against Sturgill Roofing, Inc., that resulted in the death of a temporary worker. A second citation for violation of  29 CFR 1926.21(b)(2) for failing to train employees on the recognition and avoidance of heat related illness was also vacated. The OSHRC decision underscores the difficulty in overcoming the higher evidentiary burden needed to establish a violation based on heat stress under the general duty clause of the OSH Act.

In Sturgill, the Secretary of Labor sought to enforce penalties against Sturgill for failing to protect employees from a heat stress hazard when a 61-year old temporary employee collapsed on a roof during the first day on the job and died as a result of ”complications arising from heat stroke,” according to medical reports. The OSHRC, however, found that the Secretary had failed to prove 1) the existence of a hazard and 2) that a feasible or effective means to abate or materially reduce the hazard existed.

To prove the existence of a hazard, the Secretary  relied on the National Weather Service (NWS) Heat Advisory Chart to establish that the climatological conditions on the roof presented a significant risk of harm to constitute a hazard. The majority rejected the Secretary’s reliance on the NWS Chart which assigned a warning level to four ranges of values to indicate the likelihood of heat disorders with prolonged exposure or strenuous activity. The majority concluded that the Secretary failed to meet its burden of proof that employees were exposed to a significant risk of harm because of a:

  • Lack of evidence defining “prolonged exposure” and “strenuous” activity and of whether such conditions existed;
  • Lack of evidence on the extent of exposure by the worker within a range above the “caution” level, and a lack of evidence on the amount of increase that should be added to the heat index to account for conditions that increase the level of heat exposure, such as full sunshine;
  • Lack of evidence supporting the testimony of the Secretary’s medical expert regarding the causal connection between the conditions on the rooftop and heat stress; and
  • Lack of evidence establishing that the fatality was attributable to excessive heat despite the worker’s pre-existing medical conditions.

Notably, the majority stated in a footnote that the “…Secretary’s failure to establish the existence of an excessive heat hazard here illustrates the difficulty in addressing this issue in the absence of an OSHA standard.” Further, they emphasized that “Cal/OSHA has had a heat illness prevention regulation in existence since 2006.”

On the failure to establish a feasible means of abatement, the majority found that the Secretary presented the abatement measures as alternative means of abatement, not as a component of a single plan of abatement. Because the majority found that Sturgill had implemented some but not all of the abatement measures, the Secretary failed to establish that the measures used to abate the heat hazard were inadequate.

Finally, the majority vacated the second citation because the Secretary failed to establish that Sturgill failed to provide instructions that a reasonably prudent employer would have given to its employees on recognition and avoidance of risk factors related to the development of heat related illnesses.

There are two essential take aways from this Sturgill decision:

  • The current OSHRC commissioner and, presumably, the two future nominees of the current administration may reject efforts to use the general duty clause as a catch all solution to address hazards for which there is no standard.
  • The Secretary of Labor will have a road map from the Sturgill case on the evidentiary pitfalls associated with proof of a heat stress violation under the general duty clause and will provide more substantial evidence to support their position in the next case.

Congressional and state support for a federal heat standard

There is support on the Hill for adoption of a federal heat stress standard. Representative Judy Chu (D-CA) is on the record for planning to introduce legislation in 2019 that mandates OSHA to develop a federal heat stress standard. Chu has been down this path before as the sponsor of California legislation that was successfully passed and implemented in 2006 requiring Cal/OSHA to adopt a standard for heat illness prevention. Even if federal legislation is introduced, however, it is unlikely that such a bill would move forward in the Republican-controlled Senate.

It can be expected, however, that private advocacy groups will continue to garner support for their national campaign to push OSHA to use their rulemaking authority to adopt a heat stress standard. Consequently, even if legislation cannot be passed out of Congress, the House Education and Labor Committee is expected to use its oversight authority to pressure OSHA to add a heat stress standard  to their unified agenda and to develop the standard. In the meantime, in addition to California, Washington and Minnesota which have adopted state-wide heat stress standards, a member of the state legislature of Florida, one of the hottest states in the nation, also has introduced legislation to issue a heat stress standard.

What this means to you

There is no indication that OSHA will curtail enforcement actions against employers that fail to implement heat stress programs and train workers to protect against heat related illnesses. While OSHA’s ability to use the general duty clause to enforce citations may be more limited than in the past, circumstances with compelling facts may not preclude the Secretary from satisfying its evidentiary burden under the general duty clause.

As we’ve posted in the past, employer’s with employees exposed to hot conditions or heat stress should adopt and follow heat illness prevention measures in their safety plans that include an acclimatization schedule for newly hired workers and unacclimatized long-term workers, training for workers and supervisors about symptom recognition and first aid, engineering and administrative controls to reduce heat stress, and provision of fluids and shady areas for rest breaks.

If you have questions or would prefer assistance with development or review of your heat illness prevention measures, contact Donna Pryor or your Husch Blackwell safety law attorney.

Tracey Oakes O’Brien was a contributing author of this content.

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Photo of Donna Pryor Donna Pryor

A member of Husch Blackwell’s Energy & Natural Resources group, Donna focuses on commercial and administrative litigation related to mine safety and occupational safety and health. She also assists clients in crisis management and strategic communications related to workplace health and safety issues.

 

Donna has extensive experience in the production of precious metals, aggregates, cement, industrial minerals, coal, salt, potash, phosphate, granite, limestone, and oil and gas. She combines her legal skills and government knowledge with her litigation prowess for clients facing complex problems.