Making the trip from Mexico to South Florida in September 2023, a 26-year-old man started a new job on a sugar cane farm in Belle Glade, Florida. Four days later, he was dead, having suffered fatal heat-related injuries while working in an open field as the heat index reached 97 degrees.
An investigation by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) found that the farm labor contractor who hired the young man under the federal H-2A program for temporary or seasonal nonimmigrant workers could have prevented his death by implementing safety rules to protect workers from heat-related hazards, including using an effective plan to help workers acclimate to the weather conditions.
OSHA investigators discovered the worker, while sitting atop stacks of sugar cane on a trailer and tossing them to the ground for planting, began experiencing symptoms consistent with heat-related illness and complained of not feeling well. Shortly after, he collapsed.
“This young man’s life ended on his first day on the job because his employer did not fulfill its duty to protect employees from heat exposure, a known and increasingly dangerous hazard,” explained OSHA Area Director Condell Eastmond in Fort Lauderdale, Florida.
After its investigation, OSHA cited the employer with one serious violation for exposing workers to hazards associated with high ambient heat while working in direct sunlight. Federal investigators also found that the employer did not report the worker’s hospitalization or eventual death, both of which the law requires be reported. The company faces $27,655 in proposed penalties, an amount set by federal statute. The employer is contesting the findings before the independent Occupational Safety and Health Review Commission.
Heat Kills, Sickens Thousands Every Year
There were 36 work-related deaths in the United States due to environmental heat exposure in 2021, the last year for which statistics are available, according to the U.S. Bureau of Labor Statistics. In total, approximately 1,220 people in the United States are killed by extreme heat every year. All of those deaths are preventable.
It is possible these numbers will continue to creep up, as more than two-thirds of all Americans were under heat alerts in 2023. Heat events are becoming more frequent and intense, according to the Centers for Disease Control and Prevention (CDC). This is especially problematic for workers — both indoors and outdoors — who are exposed to high temperatures. Most outdoor fatalities, 50% to 70%, occur in the first few days of working in warm or hot environments because the body needs to build a tolerance to the heat gradually over time, according to OSHA.
OSHA has taken a critical step in addressing the dangers of workplace heat exposure, moving a few steps closer to publishing a proposed rule to reduce the significant health risks of heat exposure for U.S. workers in outdoor and indoor settings.
On 24 April 2024, OSHA presented the draft rule’s initial regulatory framework at a meeting of the Advisory Committee on Construction Safety and Health. The committee, which advises the agency on safety and health standards and policy matters, unanimously recommended OSHA move forward on the Notice of Proposed Rulemaking. The next step will be the publication of a proposed rule, followed by input from stakeholders. The process will likely take several months.
As part of the rulemaking process, the agency will request and consider input from a wide range of stakeholders and the public at-large as it works to propose and finalize its rule.
“Workers at risk of heat illness need a new rule to protect workers from heat hazards. OSHA is working aggressively to develop a new regulation that keeps workers safe from the dangers of heat,” explained Assistant Secretary for Occupational Safety and Health Doug Parker. “As we move through the required regulatory process for creating these protections, OSHA will use all of its existing tools to hold employers responsible when they fail to protect workers from known hazards such as heat, including our authority to stop employers from exposing workers to conditions which pose an imminent danger.”
In the interim, OSHA continues to direct significant existing outreach and enforcement resources to educate employers and workers while holding businesses accountable for violations cited under the general duty clause of the Occupational Safety and Health Act (OSH Act), 29 U.S.C. § 654(a)(1) and other applicable regulations. Record-breaking temperatures across the nation have increased the risks people face while on the job, especially in summer months.
The agency continues to conduct heat-related inspections under its National Emphasis Program – Outdoor and Indoor Heat-Related Hazards, launched in 2022. The program inspects workplaces with the highest exposures to heat-related hazards proactively to prevent workers from needlessly suffering injury, illness, or death. Since the launch, OSHA has conducted nearly 5,000 federal heat-related inspections.
In addition, the agency is prioritizing programmed inspections in agricultural industries that employ temporary, nonimmigrant H-2A workers for seasonal labor. According to OSHA, these workers face unique vulnerabilities, including potential language barriers, less control over their living and working conditions, and possible lack of acclimatization, making them at high risk of hazardous heat exposure.
Employer Responsibilities
By law, employers must protect workers from the dangers of heat exposure and should have a proper safety and health plan in place to address hazardously high temperatures. At a minimum, employers should provide adequate cool water, rest breaks, and shade or a cool rest area. Employees who are new or returning to a high heat workplace should be allowed time to gradually acclimate to working in hot temperatures. Workers and managers should also be trained so they can identify and help prevent heat illness.
“No worker should have to get sick or die because their employer refused to provide water, or breaks to recover from high heat, or failed to act after a worker showed signs of heat illness,” Parker added.
Writing in their blog, “10 Steps Employers Should Take to Protect Workers this Summer as Feds Prepare to Finalize Heat Rule,” J. Micah Dickie, associate, and Robin Repass, partner, in the law firm of Fisher Phillips, note, “Employers need to take action to protect workers from heat illnesses and injuries as temperatures begin to rise nationwide – not just because it’s the right thing to do, but because federal workplace safety officials are finalizing a stringent new heat rule that would considerably raise the stakes for employers.”
According to them, OSHA’s latest move sends “a clear message to businesses from coast to coast.”
“You can expect twists and turns along the way,” they wrote, “but it seems likely that the earliest we would see a finalized rule is by early 2025.”
While states covered by federal OSHA are required to meet federal standards, they are not required to go above and beyond what is required by federal standards. Florida made headlines on 11 April 2024, when Gov. Ron DeSantis signed H.B. 433, which stopped local governments from enacting heat safety regulations beyond what federal OSHA requires.
H.B. 433 specifically notes, “Currently, there are no specific federal or state laws that provide heat exposure protections for outdoor workers.”
The bill specifically prohibits political subdivisions (individual cities and municipalities) from:
- Requiring an employer, including an employer contracting with the political subdivision, to meet or provide heat exposure requirements not otherwise required under state or federal law.
- Giving preference, or considering or seeking information, in a competitive solicitation to an employer based on the employer’s heat exposure requirements.
Florida follows Texas, which was the first state regulated by federal OSHA to enact legislation, H.B. 2127, which prevents municipalities from enacting local ordinances that mandate heat protections.
What About State-Plan States?
Dickie and Repass note in the blog that if you do business in a state where a state agency rather than federal OSHA enforces the OSH Act, laws or special emphasis programs in those states may differ. For example:
- Nevada already has a heat NEP in place, and employers in that state may also soon face a permanent rule related to heat hazards, according to Dickie and Repass.
- Oregon employers must comply with permanent safety standards on mitigating heat-related injuries and illnesses.
- California, which already had an outdoor heat illness rule, has now taken steps to adopt an indoor heat illness rule. “The proposed rule – which would create only the second indoor heat standard in the country after Oregon’s – presents major challenges for employers seeking to meet the compliance obligations,” write Dickie and Repass.
- Washington is in the process of rulemaking to issue final rules on heat-related hazards.
Other Agencies Weigh in on Heat
OSHA is not the only federal agency concerned about heat-related illness and fatalities. Two days before OSHA made its announcement, on 22 April 2024, the Centers for Disease Control and Prevention (CDC) announced it was partnering with the National Oceanic and Atmospheric Administration’s (NOAA) National Weather Service (NWS) to launch a new Heat and Health Initiative.
“Heat can impact our health, but heat-related illness and death are preventable,” said CDC Director Mandy Cohen, M.D., M.P.H. “We are releasing new heat and health tools and guidance to help people take simple steps to stay safe in the heat.”
The CDC recommends people stay cool, stay hydrated, and know the symptoms of heat illness. The new initiative offers three resources, which combined offer proactive actions people can take to protect themselves.
The HeatRisk Forecast Tool, developed by both the CDC and NOAA, is designed for public health professionals and provides a seven-day heat forecast nationwide that indicates when temperatures may reach levels that could be harmful or even deadly.
The tool uses a five-level scale to indicate how risky the heat level is in a specific area. Each level uses a color and number to represent risks from heat exposure. Thresholds associated with health impacts are identified based on relationships between temperature and mortality using CDC-based data assets at the local-level.
Utilizing an intuitive, mobile-friendly interface, CDC’s HeatRisk Dashboard integrates the HeatRisk Forecast Tool data with other information, including details on local air quality, to inform the public on how best to protect themselves when outdoor temperatures are high and could impact their health. Users can enter their zip code and get personalized heat forecast information for their location alongside protective actions to take.
The HeatRisk Dashboard is further supported by the U.S. Environmental Protection Agency’s AIR NOW Air Quality Index, which provides information on local air quality, specifically the presence of pollutants in the air.
The third tool, a newly developed CDC clinical guidance, helps health care providers speak with their patients about heat and reduce the risk of negative health impacts due to heat exposure. Heat-related deaths and illness are preventable, and the CDC recommends clinicians talk to their patients about how to stay safe where they live, learn, work, and play when it’s hot. If the HeatRisk in a patient’s location is “moderate,” for example, a clinician can reference the CDC guidance for condition-specific heat action plans containing steps to help keep the patient safe. The heat action plans are tailored to each patient’s unique circumstances.
Even though heat can impact anyone’s physical and mental health, certain groups, such as children with asthma, pregnant women, and people with cardiovascular disease, may be more sensitive. That is why CDC’s clinical guidance focuses on these individuals who may be more sensitive to heat and poor air quality.
10 Steps Employers Can Take to Avoid Employee Illness, OSHA’s Wrath
Dickie and Repass offer 10 steps employers can take to ensure a safe workplace for employees and to protect their business from OSHA inspections and possible violations under the General Duty Clause. Those steps include:
- Plan ahead by conducting an analysis of all positions or tasks that could expose workers to extreme heat and draft a workplace safety program to protect employees.
- Provide training to workers on how to prevent heat illnesses, and make sure managers are empowered to take the lead when it comes to spotting potential heat-related problems and ensuring compliance.
- Provide medical screening for all workers who will work in high-heat settings.
- Designate someone at each worksite to monitor worker health and environmental conditions on days of extreme heat. Consider establishing a buddy system for hot days — people don’t always realize they’re suffering from heat stress or heat stroke until it’s too late — and encourage employees to report heat stress symptoms.
- Provide unscheduled rest breaks and require work/rest periods of up to five minutes in shade every hour, or 10 minutes every two hours, when temperatures rise into the high 80s.
- Provide unlimited cool water. According to OSHA, employees should drink 4 to 6 ounces every 15 to 20 minutes, but no more than 1 quart/hour and 12 quarts/24 hours.
- Provide access to shaded areas and cooling fans. Provide hats for outdoor workers in the sun.
- Consider changing start times and days during a project to avoid high-heat hours and consider rotating crews of workers to minimize work time during the hottest hours.
- Require an acclimatization period for workers not used to working in the heat. As noted, as high as 70% of heat-related illness occurs during the first few days of working in heat. OSHA provides a full list of detailed recommendations that you should implement for a one-to-two-week period.
- Include heat response as part of your first aid training and be prepared to provide prompt medical attention for employees.
“You should take action now as temperatures rise, particularly where you have employees engaged in outdoor work, wearing heavy or bulky equipment or personal protective equipment, or where workers are performing strenuous work such as intense arm and back/lifting work, carrying, shoveling, manual sawing, pushing, and pulling heavy loads, and walking at a fast pace in humid and hot conditions,” wrote Dickie and Repass.
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