By: Thomas H. Welby Published: May 2012

Safety Policy: Most Construction Employers Should Have Written Heat Stress Management Programs

With warm weather returning, you should be thinking of your company's responsibility to protect employees against the dangers of heat stress. As most construction trades involve outdoor work and/or exposure to high temperatures, if you don't have a formal, written program, you need to develop one. And, if you do have a program, you should review it to ensure its adequacy, and consider extra training for your workforce.

While heat stroke is the most acute danger associated with exposure to high temperatures and humidity, heat stress poses many additional dangers. It lowers physical performance and mental alertness, and promotes irritability, anger, and inattention. It can also complicate many medical conditions. A particular danger of heat stress is that it can go unrecognized, and affected persons will often attempt to shrug it off, with dangerous or even fatal consequences.

In Secretary v. Post Buckley Schuh & Jernigan, Inc., the employer was a consultant in engineering and architectural design. The job at hand involved "archeological field work," or surveying a site for artifacts. A team, consisting of archeologists or anthropologists, clears an area of brush, and uses hand shovels to dig 1-square-foot holes about 3 feet in depth. The extracted soil is then screened for artifacts, and the results recorded.

This work was in preparation for the installation of a 100-mile long pipeline in Texas, south of San Antonio. Employee "C.L." had missed discussion of protection against the summer heat at an initial orientation. On his first day, his supervisor had returned to her hotel after being stung by a bee. C.L. and a second new hire were not, therefore, given any instructions regarding heat stress, other than an admonition to "take it pretty slow and easy" and to work "at any pace they could."

As the temperature climbed from about 84° (with 63% humidity) toward an afternoon high of 97°, the team members set about performing their "shovel tests." Ms. Hopwood, the archeologist filling in for the absent team leader, checked on C.L. at roughly 10:30 A.M. C.L. stated he was "not feeling well," and was instructed by Ms. Hopwood to sit down, rest, and drink some water. The only available shade in the immediate area was provided by small mesquite trees.

About 15 minutes later, Ms. Hopwood again checked with C.L. and, when he reported that he still wasn’t feeling well, she told him to go sit in the company truck (some 300 feet distant, on the main road) with the air conditioning on.

About an hour later, C.L. returned, said that he had drunk some water and eaten some almonds while sitting in the air-conditioned truck, and that he felt much better. Later, Ms. Hopwood would say that she found C.L.’s "exuberance" rather strange, but dismissed it as C.L. was viewed as rather odd, generally, wherefore his behavior was not seen as a sign of disorientation.

As lunchtime was approaching, Ms. Hopwood had C.L. finish a shovel test, and then asked him to return to the truck, and drive it near to where the team was working, so that the water cooler, which was in the truck, would be nearby. When C.L. did not return promptly, team members dispatched to look for him found him driving the truck, much too fast, up and down the dirt road. He had been unable to locate the team, even though he had gone to and from the truck scarcely an hour before.

C.L. spent much of the lunch hour in the air-conditioned truck, but between 15 and 30 minutes outside, exposed to the heat. About 20 minutes after work resumed, Ms. Hopwood checked on him and found that, although instructed to clear brush only in a 1' x 1' area, C.L. had cleared an area about 5' x 9'. She found this to be very strange, but merely instructed him not to clear so large an area.

Again checking on C.L. at around 3:00 P.M., Ms. Hopwood founding him standing some 20 yards away from his test area, holding grass in his hand. He reported that he was "not lollygagging but feeling a bit disoriented." She told him to go sit in the shade and drink some water; later, it was determined that he did not take any water.

About half an hour later, Ms. Hopwood again encountered C.L., who was unable to respond intelligibly to a question. She told C.L. to go sit in the air conditioned truck, and that the rest of the team would join him upon finishing work for the day, in about 20 minutes. C.L. said he thought that would be a good idea, and headed off in the direction of the truck, some 300 feet away.

When the crew headed back to the vehicles at about 4:00 P.M., C.L. was nowhere to be seen. Team members went looking for him, and found him, face down and curled up in a ditch, about 300 yards down the road from the truck. He was unconscious, breathing heavily, and hot to the touch. Team members poured water on him and applied wet handkerchiefs, while waiting for the ambulance.

C.L. was removed to the hospital, and died there a few days later. The autopsy found that his initial core temperature was 107.8° F.

Because there is not an OSHA standard directly on point, the employer was cited for a "Serious" violation under the General Duty Clause. The only doubtful element of a General Duty Clause violation was the existence of a feasible and acceptable method to abate a recognized hazard. The Secretary proposed that a "heat stress management program," including "threshold limit values" and "biological exposure indices" published by the American Conference of Governmental Industrial Hygienists, and/or procedures set forth in a document entitled, "Working in Hot Environments," by the National Institute of Occupational Safety and Health was such a method.

The ALJ found that the test as to both documents was whether their standards (1) had been adopted by the Secretary as a regulation or a consensus standard, or (2) recognized by the industry. With the help of expert witness testimony from both sides, the ALJ found that the NIOSH document (but not the ACGIH guidelines) had gained recognition in the industry, and should therefore be seen as establishing the existence of an acceptable means of abating heat stress.

Briefly, the six elements (the first five of which are contained in the NIOSH document, "Working in Hot Environments") (available online) are these:

  1. Acclimatize employees beginning work in a hot environment, or returning from absences of 3 or more days. Increments are not provided, but adjusting to heat generally takes 5-7 days.
  2. Development a work/rest regimen. How much rest following how much work is not stated, but the concept is that there should be rest periods at regular intervals, in lieu of requiring workers to ask for permission to rest. Brief, but frequent, rest periods are best.
  3. Provide cool water and encourage employees to drink 5-7 oz. of water every 15-20 minutes. Do not rely on employees' drinking water only when they are thirsty.
  4. Provide for a cool rest area. A maximum temperature of 76° F. is recommended. The ALJ was troubled that, in the case before him, the air-conditioned company truck could take up to 15 minutes to reach on foot.
  5. Train employees regarding health effects of heat stress, symptoms of heat-induced illnesses, and methods of preventing such illnesses. In addition to training employees, you should keep written records, with the names of employees trained, and dates.
  6. Establish a screening program to identify health conditions aggravated by exposure to heat stress.

While the ALJ did not accept item (6) as recognized by the industry and the respondent (as the same does not appear in the NIOSH Document) the employer’s heat stress management program was found deficient as to all of items 1-5, and so the citation and penalty were affirmed.

The ALJ rejected the employer’s view that all elements of its program need not be in writing. "Without written policies to facilitate training...or to provide employees with the [employer’s] expectations, respondent cannot have an effective heat safety program." This statement probably doesn't have the full force of law, but your program will be more effective, and you will be better able to demonstrate compliance with the OSH Act's training requirements, if your program is in writing.

© Welby, Brady & Greenblatt, LLP.
All Rights Reserved. By visiting this site, you agree to our Terms of Service. For more information please read our Privacy Policy Attorney Advertising