OSHA has denied a petition from Public Citizen and others requesting the agency promulgate an emergency temporary standard (ETS) for a heat stress threshold and a subsequent permanent heat stress standard. The other organizations petitioning for the standard include Farmworker Justice; United Electrical, Radio and Machine Workers of America; and Dr. Thomas Bernard of the University of South Florida.
Public Citizen is calling the agency’s action “particularly shortsighted, given the searing temperatures we are seeing in the summer and the number of workers who are dying from heat.”
Over the past 20 years, at least 563 U.S. workers have died and more than 46,000 have suffered serious injuries from acute heat stress. There is no federal regulation in place to protect workers from heat stress. Public Citizen petitioned for such a standard last year, and OSHA recently denied it.
In a letter to Public Citizen, Assistant Secretary of Labor Dr. David Michaels wrote, “After a thorough review of the materials submitted in support of the petition, OSHA is denying your petition for the reasons discussed below. I assure you, however, that OSHA takes your concerns very seriously, is aware of the hazards associated with extreme heat exposure, and is taking action to address them.”
OSHA is authorized by the Occupational Safety and Health Act to issue an ETS “when it finds both that employees are exposed to a grave danger from exposure to substances or agents determined to be toxic or physically harmful, and that issuance of an ETS is necessary to protect employees from that danger,” wrote Michaels.
The "grave danger" finding required for an ETS includes compelling evidence of a serious health impairment involving incurable, permanent or fatal consequences, Michaels noted, adding, that while OSHA agrees exposure to extreme heat can lead to death, the majority of workers with adverse health effects from heat exposure experience dehydration, cramps, exhaustion and other symptoms and are able to recover fairly quickly when the appropriate measures are taken. Michaels went on to say that the General Duty clause requires employers to provide a workplace that is free of recognized hazards likely to cause death or serious physical harm.
“OSHA has increased enforcement by emphasizing to its regional administrators the importance of conducting heat inspections and how to draft and support general duty clause citations when conditions warrant such action or issue a hazard alert letter for circumstances when all of the elements for a general duty clause citation are not present. As a result, OSHA has increased its focus on heat as a hazard during its inspections,” said Michaels.
Michaels also pointed to an educational campaign launched by OSHA this summer, saying, “On May 7, 2012, OSHA launched a nationwide heat stress education and outreach campaign to educate workers and their employers about the hazards of working outdoors in the heat and steps needed to prevent heat related illnesses. The 2012 Heat Illness Prevention Campaign builds on last year's successful campaign to raise awareness about the dangers of working in extreme heat.” The agency also created a smart phone app, adopting a practical and public index based on the National Weather Service's heat index to help employers know when and how to incrementally implement precautions as the temperature rises.
Dr. Sammy Almashat, researcher with Public Citizen’s Health Research Group and lead author of the petition, claims that OSHA’s denial of the petition “makes explicit the agency’s position to ignore 40 years of expert consensus in the interest of placating industry.”
Dr. Thomas Bernard, a co-signer on Public Citizen’s petition, and a reviewer of the revised National Institute for Occupational Safety and Health (NIOSH) recommendations for a heat stress standard 26 years ago, stated, “These deaths are completely preventable with just a few, inexpensive interventions, some of which have already been implemented in several states. The time is long overdue for a federal heat stress standard that will protect workers from dangerous heat exposure.”
Added Virginia Ruiz, attorney with Farmworker Justice and another co-signer on the petition, “Farmworkers suffer more than any other worker population from the effects of extreme heat. OSHA’s denial of our petition continues to leave adult and child farmworkers without the right to adequate water or a rest break, putting their lives at risk while picking our fruits and vegetables.”