Update: On September 20, 2021, the U.S. Department of Labor announced that OSHA will be taking steps to implement a workplace heat standard. In October 2021, OSHA will be issuing an Advance Notice of Proposed Rulemaking on heat injury and illness prevention, initiating a comment period that will allow OSHA to gather more information to protect workers. For more information on these efforts, click here.
In recent years, heatwaves and wildfires have increased in intensity. Those increases have posed additional risks for employees that work outside, such as agricultural workers. As a result, some states as well as the federal government have adopted measures directed at providing employees additional protection against the hazards posed by excessive heat and wildfire smoke.
The majority of these measures are based on the Occupational Safety and Health Act of 1970 (“OSH Act”), a federal law that requires employers to provide their employees a place of employment that “is free from recognized hazards that are causing or likely to cause death or serious harm to employees.” 29 U.S.C. § 654(a)(1). The OSH Act created the Occupational Safety and Health Administration (“OSHA”), the agency responsible for ensuring worker safety and health protections. OSHA has the power to determine which standards and requirements apply to specific workplace environments and also has the power to enforce employer compliance to those standards and requirements. Additionally, the OSH Act permits states to either follow federal OSHA standards or to implement their own, as long as the state plan is at least as protective as the federal regulations. Once a state plan is approved, the state-level OSHA department is responsible for its enforcement. To see whether your state follows federal OSHA standards or if they have their own OSHA-approved State Plans, you can click here.
With the recent heatwaves across the country causing record temperatures, agricultural workers are at high risk for developing life-threatening heat-related health issues. On average, according to the CDC, 702 people die from heat-related illnesses. Additionally, approximately 67,512 emergency room visits and about 9,235 people are hospitalized due to heat. According to the National Oceanic and Atmospheric Administration, from 1991-2020, heat killed more people than any other weather-related hazards, including hurricanes and floods. A report published in 2008 by the CDC found that between 1992 and 2006, the number of crop workers who died from heatstroke was 20 times greater than that of all other workers in the United States.
In response to the risks posed by heat, the federal government, along with some states, have implemented regulations while also considering new ones aimed at protecting employees from those risks.
The portion of the OSH Act that requires employers to provide a place of employment “free from recognized hazards that are causing or likely to cause death or serious harm to employees” is called the “General Duty Clause.” Under this clause, an employer has a legal obligation to keep a workplace free of hazardous conditions or conditions which are likely to cause death or serious physical harm to the employees. Even though there are no specific heat standards, the General Duty Clause would include protecting workers from extreme heat while working. Because the clause is so broad, there are many guidelines that OSHA has published to help employers understand how it applies in different types of potentially hazardous conditions. This includes various guidelines that pertain specifically to heat hazards.
Through the OSH Act, Congress charged the National Institute for Occupational Safety and Health (“NIOSH”) with recommending occupational safety and health standards and describing exposure levels that are safe for various periods of employment. NIOSH has created recommendations that employers can use to prevent heat-related illnesses in their workplaces. While NIOSH recommendations are not mandatory, they are recommended by OSHA when it comes to heat exposure and creating safe working conditions.
OSHA’s Heat Illness Prevention Campaign
In 2011, OSHA launched its Heat Illness Prevention campaign to help educate “employers and workers on the dangers of working in the heat.” Employers are not required to follow these specific parameters, but it serves as guidance to help employers provide a work environment in compliance with the General Duty Clause. As part of the campaign, OSHA recommends that an employer with workers exposed to high temperatures should establish a complete heat illness prevention program. Specifically, employers should be:
- Providing workers with water, breaks, and shade.
- Allowing new or returning workers to gradually increase workloads, take more frequent breaks as they acclimatize, and build a tolerance for working in the heat.
- Planning for emergencies and train workers on prevention.
- Monitoring workers for signs of illness.
The Asuncion Valdivia Heat Illness and Fatality Prevention Act of 2021
Some members of Congress have introduced a bill to implement required federal heat standards. The Asuncion Valdivia Heat Illness and Fatality Prevention Act of 2021 has been introduced in both the House and Senate for consideration. This bill would require the Department of Labor to promulgate standards to prevent exposure to excessive heat. The bill also includes language that establishes requirements for training and education to prevent heat-related illness along with providing protection for whistle-blowers. This bill was introduced on April 12, 2021 in the Senate and on March 26, 2021 in the House. The bill is currently in the House Committee on Education and Labor and has not passed through either chamber.
Several states have had plans approved by OSHA adopt measures more stringent than federal OSHA regulations. California, Minnesota, and Washington all have heat standards in place that protect employees under varying circumstances.
California has some of the most extensive worker protections for heat illness prevention. Adopted in 2006, the California OSHA Heat Illness Prevention Standard was the first in the country to apply to all outdoor jobs. Those standards mandate that employers in California must have written procedures in place to comply with the requirements. Additionally, employers must provide workers with training for all employees and supervisors about heat illness prevention. Employers must also provide fresh water, at least 1 quart per hour per employee, and encourage the employees to drink the water. Employers must also provide shade, and employees should be encouraged to rest in the shade. For California, the heat standard requirements come into effect when temperatures reach 80°F.
Washington’s heat standard applies to outdoor heat exposure seasonally, from May 1 through September 30. Under the Washington standard, safety requirements take effect depending on the temperature and the clothing types that an employee is required to wear. For example, when outdoor employees wear clothing items such as coveralls or sweatshirts, temperatures of 77°F and higher trigger additional employer responsibilities. When triggered, employers must encourage employees to drink water, monitor the amount of water that employees are drinking, and remind employees of their heat exposure safety program. In addition, it is the employee’s responsibility to monitor for any heat-related illnesses. The heat standard also includes requirements for how to respond to signs and symptoms of heat-related illnesses and what training and information must be provided to employees and supervisors.
In contrast, Minnesota’s heat standard only applies to indoor heat exposure. The Minnesota indoor heat standard uses the wet bulb globe temperature (“WBGT”) index to determine how and when to limit heat exposure. The wet bulb temperature index accounts for both heat and humidity, which is different from both California and Washington. California and Washington use the standard dry bulb temperature, which is more typical. The WBGT that employers use to determine when they must take extra precautions for heat exposure depends upon the workload of the employee. For light work, the WBGT limit is 86°F. For moderate work, the WBGT limit is 80°F. For heavy work, the WBGT limit is 77°F. Once the heat exposure limit has been exceeded, the employer must ensure that steps are taken to reduce the temperature of the work environment, the time spent in the hot area, or the amount of work done. Additionally, the employer must stress the importance of drinking water frequently and provide adequate water in the work area.
During the historic heatwave that hit the Pacific Northwest in June of 2021, Oregon adopted similar standards to California and Washington’s. Governor Kate Brown of Oregon directed the Oregon OSHA to enact emergency rules to create protections for workers in extreme heat. The temporary rules expanded requirements for employers to provide shade, rest time, and cool water for workers during high and extreme heat events. The rules are in effect for 180 days, until January 4, 2022, and a more permanent heat stress prevention standard is expected to be adopted in the fall of 2021.
Wildfire smoke has become a more frequent problem impacting farmworkers in recent years. The National Interagency Fire Center reports that there are currently 79 large active fires in the United States, and that fires have consumed almost 6 million acres since January 1, 2021. With the amount of smoke being produced by these fires affecting more and more people, the federal government has implemented regulations to protect workers from this hazard. Additionally, some states have taken additional action by adopting their own regulations dealing with wildfire smoke safety.
Just as OSHA’s General Duty Clause, discussed above, provides protections for workers exposed to heat, it also provides protection from safety hazards created by wildfires. This includes an employer’s general legal obligation to protect workers from hazardous conditions that wildfire smoke causes or that is likely to cause death or serious physical harm. In addition to the General Duty Clause, there are specific OSHA regulations that require personal protective equipment (“PPE”), such as respirators and dust masks, to be worn when employees are working in hazardous atmospheres. 29 C.F.R. § 1910.134. When determining the appropriate PPE that an employer must provide to their employees, the employer should look at how hazardous the atmosphere is and whether or not it is considered immediately dangerous to life or health. Employers must use additional assigned protection factors to select a respirator, and the respirator must meet or exceed the level of protection required.
Just as states can create their own standards for heat safety, they can also create standards for wildfire smoke protections. California, Oregon, and Washington have all proposed legislation, have taken emergency action, and implemented temporary rules to protect outdoor workers from wildfire smoke.
California’s OSHA has promulgated regulations that protect workers from wildfire smoke. These regulations apply to most outdoor workplaces when the current Air Quality Index (“AQI”) is 151 or greater and when the employer should reasonably anticipate that employees may be exposed to wildfire smoke. The regulation requires that employers must determine employee exposure before the start of each shift. Employers must also implement a system for communicating wildfire smoke hazards and safety training in a way that all employees can understand. If employees are exposed to AQI levels above 151, employers must provide NIOSH-approved particulate respirators to all employees for voluntary use.
California lawmakers are also working to pass the Farmworker Wildfire Smoke Protections Act. Under this legislation, employers would have access to respirators and other PPE from the state’s stockpile of PPE to provide to their employees during wildfire smoke events. Additionally, the California OSHA would be required to provide employees with bilingual wildfire safety information. The legislation would also add agricultural workers to California’s Health and Safety Code definition of essential workers.
In Washington, the Labor and Industry Department implemented emergency rules regarding wildfire smoke that are effective until November 13, 2021. The emergency rules apply to workplaces where the employee is likely to be exposed to wildfire smoke. The emergency rules require employers to determine the air quality at worksites, communicate the air quality to employees when it reaches a certain level, and train supervisors and staff about the hazards of wildfire smoke. Additionally, the employer must communicate their plans to protect employees from the smoke, allow medical care for workers who show wildfire smoke-related illnesses, and supply respiratory protection for employees to use voluntarily. Washington is also in the process of creating permanent wildfire smoke rules that are similar to those contained in the emergency rule.
The Oregon OSHA-equivalent has also released temporary rules to protect workers from wildfire smoke that are effective until February 5, 2022. They require employers to provide training about the hazards of wildfire smoke, make respirators available to employees when air quality levels surpass certain levels, and require employees to use respirators when those levels of exposure are passed. Employers must check what the current air ambient concentration is when determining the air quality and must start acting when the AQI levels reach 101. When the ambient air concentration levels reach AQI 201, employers must ensure that employees are wearing NIOSH-approved respirators. Similar to Washington, Oregon is also in the process of creating permanent rules for protection from wildfire smoke.
Overall, depending on the hazard, there are various requirements and recommendation out there. Outside of the General Duty Clause, in regards to heat safety and exposure, OSHA only has guidelines and recommendations that employers can follow, no specific requirements. With respect to wildfire smoke, OSHA does have specific standards that must be followed when the air quality if affected. When it comes to individual states, more and more are using their power under the OSH Act to enact their own regulations that are more specifically directed at protecting workers from heat and wildfire smoke.
For OSHA resources for employers to help plan for and prevent heat-related illnesses, click here.
For more information on the National Institute for Occupational Safety and Health (“NIOSH”) recommended standards, click here.
For an OSHA Quick Card resource on heat stress, click here.
FOR OSHA PPE Respiratory Protection Standards, click here.
For OSHA resources regarding wildfire, click here.
For an OSHA Quick Card resource regarding appropriate respirators, click here.
To find out more information about your local air quality, click here.
For more National Agricultural Law Center resources on labor, click here.