On August 12, 20222, the Occupational Safety and Health Administration (OSHA) issued a citation to a farm labor contractor alleging violations for exposing workers to high ambient outdoor heat following the death of a worker on a strawberry farm in Florida. The citation serves as warning for employers, particularly those in warm climates, of OSHA’s enforcement approach following the April 2022 launch of the agency’s new three-year national emphasis program (NEP) on indoor and outdoor heat-related hazards, particularly with regard to how working in the sunlight can create hazardous conditions.
Background
The OSHA citation centers on an alleged heat-related incident that occurred on April 5, 2022 at a strawberry farm in Duette, Florida, in which a worker died after “exhibit[ing] symptoms of heat exhaustion such as fatigue, weakness, and disorientation.” OSHA alleged that farm workers were exposed to high ambient heat in the sun on the day in question, performing job duties that included eight hours of harvesting strawberries and one hour of pulling plastic form plant beds.
OSHA alleged that on that day in April 2022, temperatures rose to 89°F. More specifically, the citation alleged the WetBulb Globe Temperature (WBGT), which is a measure of the heat stress in direct sunlight, ranged between 77°F to 86.9°F during the time employees were performing “moderate manual labor” outdoors while wearing “long sleeves and pants.” OSHA alleged that “such exposures are likely to lead to the development of serious heat-related illnesses such as, but not limited to, heat cramps, heat stress, heat exhaustion, and heat stroke.”
OSHA alleged two specific violations in the citation: (1) that the farm failed to properly protect employees from the hazards of high ambient heat by not developing and implementing a Heat Illness Prevention Plan in violation of section 5(a)(1) of the Occupational Safety and Health Act; and, that, given that there was no nearby healthcare facility, it failed to have a person trained to provide first aid to employees suffering from heat-related illnesses in violation of 29 CFR 1910.151(b). OSHA is seeking $29,004 in proposed penalties for the violations.
The citation comes after OSHA, on April 8, 2022, launched its new NEP entitled “Outdoor and Indoor Heat-Related Hazards,” which expands the agency’s heat-related illness campaign under the Biden administration. Under the NEP, OSHA requires employers to have a heat-related hazard prevention program in place that applies when the heat index is expected to be 80°F or higher.
Shifting Heat Standard
The allegations against the contractor suggest that OSHA is now focused not only on the temperature or the heat index, but how working in the bright sun can exacerbate heat-related hazards, which could have a significant impact on employers with employees working outdoors in warm locations like Florida.
The citation specifically referenced the WBGT as opposed to the temperature or the “heat index,” to show that the heat conditions were hazardous. According to the National Weather Service (NWS), the heat index is a measure of how the temperature really feels—taking into account the temperature and the humidity—and is calculated for areas in the shade. On the other hand, WBGT is a measure of the “heat stress” when in direct sunlight, factoring in temperature, humidity, wind speed, sun angle, and cloud cover. While WGBT may be more precise to describe outdoor conditions in the sun, it is less commonly known and not typically included in regular weather forecasts.
This shift to WBGT combined with the allegations that the temperature rose up to only 89°F creates uncertainty for employers on what conditions may be considered “too hot” and thus may turn out to warrant an OSHA citation. Such temperatures are common in warm locations, and according to the NWS, average high temperatures in the part of Florida where the fatality occurred exceed 80°F from April–October. This signals that the bar for when there are hazardous heat conditions could be lower than what employers may have previously understood and could be such that virtually every workplace in warmer climates potentially could be considered hazardous for moderate work during much of the year.
Despite these uncertainties, the citation serves as a reminder that employers with employees working outside in the heat should have procedures in place to recognize, prevent, and address heat related conditions. In addition to allegedly violating its general duty to provide workplaces free from recognized hazards, the farm contractor, according to OSHA, violated 29 CFR 1910.151(b) because it did not ensure access to first aid given the distance of the nearest infirmary, clinic, or hospital. OSHA’s allegations highlight employers’ obligations to consider what resources are available to address work-related injuries, including heat-related illnesses and fatalities.
Key Takeaways
Overall, the citation should serve as a warning for employers, at least those in Florida, about how OSHA has updated its approach to citing employers for heat-related exposures. Employers, such as agricultural companies, with employees who are working in direct sunlight may want to review their policies and procedures to recognize and take action to address illnesses from heat exposure. In drafting such policies, employers may also want to take into consideration their worksites’ proximity to healthcare facilities, whether they have provided first aid training to workers, or whether they need to designate a safety worker.
Employers facing these issues may be interested in heat-related hazard policy templates to assist them in complying with heat-related safety initiatives. Ogletree Deakins will continue to monitor and report on developments with respect to OSHA’s national emphasis program on indoor and outdoor heat-related hazards and will post updates on the firm’s Workplace Safety and Health blog. Important information for employers is also available via the firm’s webinar and podcast programs.
