I know it's only mid-April but now is the time to start gearing up for hot weather and the dangers of heat stress. Among other things, you're going to need to warn your workers about the different heat-related illnesses (which, for simplicity's sake, I'll refer to collectively as "heat stress") and remind them to drink lots of water, take breaks, wear appropriate clothing, etc. But is that enough? Are you confident that you're doing everything necessary to protect your workers? And if, heaven forbid, a worker were to die of heat stress, would you be liable? Let's look at your liability risks and what you can do to manage them.

What the Law Says About Heat Stress

There is a legal duty to guard workers against heat stress, even though OSHA doesn't have a specific standard on heat stress. The OSHA General Duty Clause (Section 5(a)(1) of the OSH Act) says that every employer must safeguard workers against "recognized hazards" that can cause great bodily harm or death. Heat stress can cause great bodily harm or death. And it's a recognized hazard. As a result, all employers must take steps to protect their workers against heat stress.

This isn't just abstract legal theory. OSHA has invoked the duty to protect workers against heat stress in actual cases.

Example: An Ohio steel and iron castings manufacturer plant with 1,500 workers used molten metal containers that produced tremendous amounts of heat. During a heat wave, one of the workers who worked near a molten metal container collapsed twice from heat stress. After he passed out the first time, the employer tried to cool the work area with large fans and radiant heat shields. But the heat was still unbearable and workers complained to OSHA. An OSHA inspector took measurements and reported the temperature of the worker's workstation as 95° F. That was just too high in OSHA's opinion. So it fined the employer for failing to take adequate measures to reduce heat stress hazards in violation of the General Duty Clause [Duriron Co. v. Secretary of Labor, 750 F.2d 28 (6th Cir. 1984)].

The Duriron case isn't the only source of authority to show that there's an OSHA duty to protect against heat stress. In a 2001 Interpretation Letter, OSHA stated that it has the right to prosecute employers for not taking measures to deal with heat stress hazards [OSHA Interpretation Letter, Oct. 17, 2001]. The Letter also lists specific steps that employers can take to reduce such hazards including:

In addition to the General Duty Clause, the OSHA Hazardous Waste Operations and Emergency Response Standard, arguably requires prevention of heat stress hazards. For example, it requires employers to adopt personal protective equipment programs that limit workers' exposures to temperature extremes and heat stress.

Conclusion

Next week, we'll discuss how to create a hot weather plan and provide a Model Form that you can adapt for your own workplaces.

THE CANADIAN PERSPECTIVE

The Law of Heat Stress in Canada

By Glenn Demby

Canadian OHS laws are generally clearer and more specific than OSHA about heat stress. At least seven jurisdictions-BC, NB, NL, PEI, QC, SK and YT-include specific measures that employers must take to protect workers against heat stress in their OHS regulations. For example, Part 7 of the BC OHS Regulation requires employers to:

The laws of the other provinces don't say anything specific about heat stress. But that doesn't mean employers in those provinces get a free ride. On the contrary, every province has a general duty clause that requires employers to take all reasonable precautions to protect workers against foreseeable risks that can cause death or great bodily harm like the U.S. OSHA statute.

Although the specifics vary slightly, all provinces require at a minimum that employers train employees about heat stress and adopt policies and procedures for working in high temperatures.

Some of the "general duty clause" provinces that don't spell out specific heat stress measures in their regulations do so in guidelines or special alerts. In essence, these guidelines explain what the General Duty Clause requires respecting heat stress. For example, the Ontario Ministry of Labour has issued guidelines stating that Section 25(2)(h) of the OHS Act-the Ontario version of the general duty clause (which requires employers to "take every precaution reasonable in the circumstances for the protection of a worker")-requires employers to "develop hot environment policies and procedures to protect workers in hot environments due to hot processes or hot weather."

Employers Fined for Lack of Heat Stress Protection

As in the U.S., Canadian employers have been prosecuted for not doing enough to protect workers against heat stress. Two examples:

Ontario: A worker at a national bakery and food store died on the job from heat stress. The incident occurred on August 6, 2001, when southern Ontario was in the middle of a heat wave. With outdoor temperatures of 34° C, the temperature inside the bakery was 36°. The worker overheated and collapsed. The MOL charged the employer with failing to implement a heat stress management plan in violation of Sec. 25(2)(h). The employer pleaded guilty and was fined $215,000 [Weston Bakeries Limited, MOL News Release, Feb. 18, 2004].

New Brunswick: In 1992, a boilermaker who worked for a repair contractor collapsed and died after three days of repair work in a paper mill. The outside temperature was 30° C and the inside of the mill was even hotter. The contractor pleaded guilty to not instructing the worker how to deal with heat stress dangers (in violation of Sec. 23(1) of the NB OHS Regulations) and was fined $7,500 [R. v. Lorneville Mechanical Contractors Ltd., [1993] N.B.J. No. 633].

Conclusion

The heat stress plan that we'll outline in Part 2 will also work under Canadian laws. So tune in next week.

MEMBER REPLY

Why the Computerized MSDS Isn't Enough

Hi Glenn

I found last week's quiz on computerized access to MSDS' interesting. We had a problem with our computerized MSDS system. We actually had a fire in our plant and the fire department required copies of our MSDS'. The problem was that because of the fire, the power was cut off and none of the computers were operational. Fortunately, we had hard copies of the MSDS which I was able to provide to the fire department.

What did I learn from the incident? The most important thing was to have hard copies of MSDS' available at each entrance to the building.

Barbara Thomson
Health & Safety Co-Ordinator

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