In a series of heat illness-related cases involving the United States Postal Service (USPS), OSHA successfully established extreme heat as a workplace hazard but failed to propose feasible abatement methods.
The Occupational Safety and Health Review Commission (OSHRC) upheld an administrative law judge’s decisions to vacate citations in four of the five cases. The fifth case was remanded for further proceedings.
While the OSHRC agreed that OSHA established the cited conditions of extreme heat posed a legitimate hazard under the General Duty Clause, the commission found OSHA’s suggestions to abate the hazardous conditions in four of the cases fell short.
In the fifth case, OSHRC found USPS failed to provide effective training to supervisors on heat-related illnesses, according to law firm Jackson Lewis.
Agency claims illnesses were due to excessive heat
The citations were issued after seven letter carriers working during the summer of 2016 in Benton, Arkansas; Des Moines, Iowa; Martinsburg, West Virginia; and Houston and San Antonio, Texas became ill and required medical treatment while delivering the mail.
For example, in the Des Moines case, the letter carrier had the following exchange via text message with her supervisor:
12:45 p.m., Carrier: “I’m not feeling so well. Definitely to do with the heat. I’ve been trying to hurry but I am still a little behind. Just letting you know.”
1:14 p.m., Carrier: “Feeling very weathered by the heat … as of right now I have nine swings left.”
1:17 p.m., Supervisor: “Do the best you can. I know it’s really hot out right now. Do you need any water or anything like that?”
1:34 p.m., Carrier: “Ice would be great. Did they tell you that they want me to have an eight-hour day?”
The supervisor didn’t respond to the last text and the ice was never delivered to the carrier.
At about 3 p.m., the carrier felt too ill to continue working and drove back to the station without finishing her route. Court documents say that she vomited out the window of her vehicle along the way. Three other carriers who were at the station when she arrived described her appearance as “extremely red,” “dazed,” and “shaking.” One of them said said she looked “like she was going to die.”
OSHA claimed that six of the seven letter carriers became ill because of the excessive heat that each region was experiencing on the respective dates that each carrier got sick. The agency filed five separate citations against USPS for the alleged violations.
An administrative law judge with the OSHRC was assigned to all five cases, which she vacated finding that OSHA failed to prove in each case that the workplace conditions were a hazard and that feasible means existed to abate that hazard.
Commission says heat hazard was established
Under review by the OSHRC, the commission consolidated the Benton, Martinsburg, Houston and San Antonio cases and issued a separate decision for the Des Moines case.
In all five cases, the OSHRC disagreed with the judge, finding that OSHA did manage to prove the existence of a legitimate hazard in the form of extreme heat.
This was because:
- unlike in the A.H. Sturgill Roofing Co. decision, a previous heat-related case in which OSHA failed to prove a hazard existed, the agency didn’t rely on the National Weather Service’s heat index chart
- OSHA relied on expert testimony regarding environmental and metabolic heat conditions present in each incident and which showed hazardous heat was present based on multiple studies on heat-related illnesses and scientific papers, and
- the judge erred in faulting OSHA’s expert for failing to quantify the percentage of employees that would experience a heat-related illness because OSHA isn’t required to “determine the mathematical probability of a workplace condition causing harm to show that it poses a hazard.”
“As OSHA argued that a heat standard could provide clarity, Commissioner Amanda Wood Laihow challenged that ‘excessive heat’ is a ‘vague’ term, and ‘leaves employers guessing,'” Jackson Lewis states.
This is because the findings in the USPS cases do not establish criteria for determining whether excessive heat is present. Laihow said she presumed the agency’s upcoming heat standard would establish concrete criteria, something the OSHRC has been demanding in heat cases since the A.H. Sturgill decision.
No feasible abatement measures
Once the hazard was established, the main issue with OSHA’s case became its failure to recommend feasible, effective abatement measures that USPS didn’t already have in place.
The agency argued that USPS failed to implement a comprehensive program to address the hazard of extreme heat, violating the General Duty Clause.
Measures OSHA suggested include:
- work/rest cycles
- emergency response plans and employee monitoring
- analyzing USPS data on employee heat-related illnesses
- reducing employee time outdoors
- use of air-conditioned delivery vehicles
- training on heat-related illnesses, and
However, USPS proved it was already either doing most of these things or was in the process of adopting them.
USPS was already providing supervisor and employee training on recognition and prevention of heat-related illnesses. Some locations sent supervisors to regularly check on employees working in extreme heat. USPS was also already in the process of purchasing air-conditioned delivery vehicles. It also argued that its mail carriers already had access to air-conditioned or shaded locations to rest, typically in the form of air-conditioned businesses.
The USPS training program used different forms of media to get the message regarding the hazard across, including:
- stand-up talks
- computer-based courses
- messages on computer screen savers, and
- laminated cards with the signs and symptoms of heat-related illness.
The OSHRC found this was sufficient to prove USPS’s point in all but the Des Moines case. Some of OSHA’s other suggested abatement measures proved either too costly or failed to be technically feasible.
Des Moines case remanded over training issues
In the Des Moines case, the text message exchange cited above was just one of three incidents involving mail carriers who reported symptoms of heat illness to supervisors.
Evidence revealed that no other action was taken by USPS regarding those incidents and one supervisor was shown to have completely missed out on heat-related illness training. Further, safety talks were scheduled for a time when certain mail carriers weren’t present.
The heat hazard could have been “feasibly and materially reduced” in Des Moines if all employees had been properly trained regarding the hazard, the OSHRC found. The commission remanded this case for further review.