Why did a judge throw out a fine issued by OSHA to a company whose construction worker died of heat-related illness?
The administrative law judge (ALJ) of the Occupational Safety and Health Review Commission (OSHRC) ruled OSHA didn’t show that a hazard existed and that the employer knew or should have known about the hazard.
OSHA doesn’t have heat-related illness regulations, so the only way it can issue fines in heat deaths is by using the General Duty Clause. Proving existence and knowledge of a hazard are two keys in using the GDC.
On June 24, 2013, a worker for Aldridge Electric Inc. suffered from heat stroke while working on a highway project in Chicago. The worker died the next day.
OSHA said Aldridge exposed its workers to “excessive heat” and issued the company a $7,000 fine. Just what constitutes excessive heat plays an important part in this case.
Despite not having a heat-illness standard, OSHA has issued guidance to employers on the issue.
Aldridge followed OSHA’s guidance by taking these steps:
- Employees at the worksite were permitted to take as many rest breaks as they wanted
- A tool box talk on heat illness was given to Aldridge workers on June 5, 2013
- Heat illness prevention and acclimatization of workers were topics discussed during the safety orientation on the morning of June 24, 2013, and
- Aldridge had developed a heat illness prevention plan and trained its employees working on the highway project about heat stress.
What is ‘excessive heat’?
By OSHA’s definition given at trial, “excessive heat” was defined as the combination of environmental and metabolic heat, less the ability to dissipate heat. Given that definition, the judge found OSHA didn’t make its case that there was excessive heat at the worksite on the day the worker died.
To calculate the environmental heat, OSHA starts with the National Weather Service Heat Index, but modifies it. In this case, OSHA argued the NWS heat index should be adjusted higher to take into account direct sunlight, the employee’s workload and the fact he wasn’t acclimatized to the heat.
The unadjusted NWS heat index during the afternoon of the worker’s death was 85°F. That would be below the 91°F at which OSHA advises that certain steps be taken to alleviate hot conditions.
But OSHA argued another 6°F should be added to the heat index to take into account working in direct sunlight, and there should be an additional bump into the “extreme caution” category because the worker wasn’t acclimatized.
The judge noted that this conclusion is consistent with OSHA’s guidance. However, OSHA doesn’t use mandatory language in the guidance. The guidance states next level precautions are “recommended” and that employers should “consider” taking the next level precaution when working in direct sun or for physical exertion.
On top of that, the judge said OSHA didn’t show how and by how much the index should be adjusted. The number of degrees for adjustment is subjective, according to the judge.
The judge also found OSHA wasn’t able to establish the worker’s metabolic heat load or how the worker’s heat dissipated in this case.
Those weren’t the only problems the judge found with OSHA’s case.
OSHA also argued Aldridge knew or should have known that its workers were exposed to a heat hazard on the day the worker died because he and some other employees weren’t acclimatized.
The judge discounted that argument because:
- Aldridge had a heat program and took steps on June 24, 2013, in accordance with it
- Management had checked the weather that day, and there was no evidence of a heat advisory, and
- The worker had presented a medical certificate to Aldridge indicating he was qualified, medically, to perform a certain amount of work in extreme temperatures.
Overall, the judge found OSHA didn’t show the heat hazard existed at the worksite, or that Aldridge knew or should have known about it.
The OSHRC ALJ threw out the violation and $7,000 fine.
(Secretary of Labor v. Aldridge Electric Inc., OSHRC, No. 13-2119, 12/2/16)