Pandemic Hot American Summer: Are Your Workers Safe From Indoor and Outdoor Heat?

While the world watched Olympic records being set in Tokyo this summer, we also witnessed another kind of world record-setting, with temperatures hitting record highs across the globe. According to the European Union’s Copernicus Climate Change Service, this July tied with July 2020 as the world’s third-hottest July on record, surpassed only by July 2019 and July 2016. As a result, business is literally heating up, with a larger range of workers in more occupations and more locations facing the threat of work-related heat stress. Before dismissing heat stress as irrelevant to their workplaces, employers should reexamine their environmental, health, and safety (EHS) programs to ensure heat risk is adequately assessed and mitigated, especially if operational changes have been implemented in response to the COVID-19 pandemic.

Who is at risk?

Businesses should be aware that both outdoor and indoor workplaces can expose workers to the challenges of working in the heat. Working under direct sunlight in physically strenuous activities illustrates the more commonly-known scenario for heat stress—e.g., the construction worker or farmworker. The lesser-known scenarios, however, are those involving indoor workplaces, particularly given the implementation of new protocols due to the COVID-19 pandemic. For example, these days, retail and hospitality workers may be experiencing longer shifts, increased physical exertion due to expanded job responsibilities, and the need to wear face coverings—all things that may contribute to increased heat stress.

Additionally, locations that may not have historically experienced extreme heat events are being caught unprepared and ill-equipped to handle the heat. Workplaces without air conditioning in the Pacific Northwest, for example, found themselves grappling with how to keep workers cool during this summer’s historic heatwave, while also juggling masking and social distancing requirements. According to Oregon Occupational Safety and Health Division (Oregon OSHA) data, dozens of complaints received between June 24 and June 30 stated that workers were being asked to work in establishments where air conditioning units were broken or unavailable and temperatures were reaching unsafe levels. Consequently, on July 8, 2021, Oregon OSHA adopted an emergency rule to provide “greater clarity for employers about the specific steps that need to be taken to protect workers from heat stress dangers at work”—both outdoors and indoors.

What are the rules?

Oregon OSHA’s adoption of emergency rules highlights the current gaps in the regulation of heat illness prevention in American workplaces. The federal Occupational Safety and Health Administration (OSHA) has no enforceable workplace standard that specifically requires employers to implement heat illness prevention programs. Rather, OSHA relies upon the general duty clause (Occupational Safety and Health Act Section 5(a)(1)) to deal with heat dangers—i.e., requiring employers to provide a work environment “free from recognized hazards,” such as heat, “that are causing or are likely to cause death or serious physical harm.”

This approach can have mixed success in terms of effectiveness, however, and in fact, a group of Senators has renewed calls on the Secretary of Labor to establish a federal heat standard to protect indoor and outdoor workers. OSHA has taken initial steps towards adopting such a standard, but this process will take time. By way of illustration, OSHA is not scheduled to release its Request for Information (i.e., “to begin a dialogue and engage with stakeholders to explore the potential for rulemaking on this topic”) before October. This will provide employers with ample opportunity to prepare for and weigh in on the potential regulation but will mean continued uncertainty about what should be done to protect workers.

Until there is a federal heat standard, businesses will need to remain aware of any state-specific requirements that may apply to their workplaces. So far, California (outdoor only), Washington (outdoor only), and Minnesota (indoor only) have issued heat illness standards, and more states are likely to follow suit as summer temperatures continue to set new records. For states subject only to the general duty clause, the OSHA Technical Manual chapter on Heat Stress provides guidance that employers may use to gauge the adequacy of their heat illness prevention programs.

Clark Hill’s cross-disciplinary Retail & Hospitality team is here to assist you in navigating this important challenge. Our team includes Environmental, Labor & Employment, and Government & Regulatory Affairs attorneys and professionals, providing a full range of workplace health and safety legal and policy services, including holistic EHS compliance and management advising.