Federal OSHA doesn’t have a heat stress standard. But that doesn’t mean you can’t be cited for failing to have a heat stress plan.
On Aug. 1, 2012, A.H. Sturgill Roofing Inc. of Dayton, OH, was replacing a roof on a bank building.
Sturgill had a crew of employees supplemented with workers from a temp agency.
That day, a temp who was new to Sturgill was sent to work on the bank roof. The 60-year-old man, “M.R.,” had been working in an air-conditioned indoor environment for three years.
M.R. told Sturgill’s foreman that he had roofing experience. The foreman didn’t ask how much or when he had this experience.
On that day, the predicted high temperature was 89°.
When M.R. showed up to work at 6:30 a.m., Sturgill’s foreman showed him water coolers that were available for workers on the roof. Stacked roofing materials on top of the building provided some shade.
The foreman also told M.R. that if he got hot to tell him if he wanted a break, and “if [you] can’t do it, let me know. I won’t be mad.”
The foreman provided no additional training to M.R. on heat-related hazards.
M.R. was wearing all black clothing. The foreman didn’t say anything to M.R. about it, even though he later acknowledged that “you are supposed to wear light clothes” when you work on a roof on a hot day.
The foreman assigned M.R. to the least strenuous work on the roof – take materials in a cart, lift them over a 39-inch high parapet wall, and toss them into a dump truck below.
The employees got their 15-minute morning break sometime between 8 and 9 a.m. A worker offered a 44-ounce cup of ice water to M.R., but no one knows if he drank it.
Sometime after the morning break, M.R. began to show signs of heat-related illness. The foreman noticed him sweating, but M.R. said he was fine.
Later, other employees asked the foreman to “check on the old guy.” The foreman said M.R. seemed fine. However, 15 minutes later, the foreman saw M.R. walking clumsily.
At about 11:41 a.m., M.R. became ill and collapsed on the roof, shaking. The foreman called 911. One worker began CPR. The foreman wet down M.R.’s clothing.
When emergency responders arrived, M.R. was found in direct sunlight. He was taken to a hospital with a core body temperature of 105.4°. M.R. remained in the hospital for 21 days, where he died on Aug. 22, 2012. The coroner said M.R. died from complications of heat stroke.
OSHA issued two citations to Sturgill for a total fine of $8,820. The citations alleged Sturgill:
- hadn’t adequately implemented a heat illness prevention program in violation of the General Duty Clause, and
- hadn’t provided adequate training to its employees for heat-related hazards, a violation of the construction requirement that employers “shall instruct each employee in the recognition and avoidance of unsafe conditions.”
Sturgill appealed, and the case went before an OSHRC administrative law judge.
Had a program, but was it enough?
OSHA’s guidance to employers is to implement a heat-related illness prevention plan “when the heat index is at or above 80°.”
At about 11 a.m., the temperature was 83° with 55% relative humidity for a heat index of 85°. This is in the caution category on the National Weather Service (NWS) heat index chart.
But heat indexes are calculated for shade. The workers on the roof were in direct sunlight, which can add up to 15° to the heat index which would be in the danger category.
Sturgill’s foreman also admitted it would be 10° hotter on the roof than it would be on the ground.
But the company argued there was no excessive heat hazard that day because the NWS didn’t issue a heat advisory.
The ALJ didn’t buy it:
“An employer is responsible to assess the environment that its employees are working in and establish a safety program accordingly … It is not reasonable for a roofing employer to rely solely on the generic NWS heat index [or] to only implement a heat-related safety plan at the danger level on the NWS chart … an employer must assess the conditions of its worksite to determine if its heat-related safety program must be implemented.”
Sturgill also argued it didn’t recognize that a heat hazard existed on the day M.R. fell ill and that it had no previous problems with heat-related illness at this worksite.
The ALJ said lack of a previous problem wasn’t the point.
M.R. had been working for quite a while in an air-conditioned facility. He wasn’t acclimatized, and the risks to him from working in the heat were greater.
It can take anywhere from one to three weeks for a worker to become acclimatized to working in the heat.
Sturgill claimed its heat hazard program exceeded ones most roofing companies have and that it included all of the abatement measures listed in an OSHA memo regarding heat hazards.
The ALJ flat out rejected the comparison to other roofing companies and said the OSHA memo was for its inspectors.
Even so, the memo listed the following abatement measures:
- Provide immediate access to water, rest and shade
- Implement an acclimatization program for new employees and those returning from an extended time away, and
- Implement a work/rest schedule.
The ALJ said Sturgill didn’t implement these measures.
The shade on the roof from stacks of roofing material was dependent on the angle of the sun.
There was no acclimatization program for M.R.
And Sturgill’s regular break schedule was in place on the day M.R. collapsed: two 15-minute breaks (one in the morning and one in the afternoon), a 30-minute lunch break, and one more break at an individual worker’s discretion. The break schedule wasn’t adapted for the hot conditions forecast for that day.
The ALJ upheld both citations and the fine. However, this case is pending a hearing before the entire review commission, so this decision isn’t final, yet.
Still, until the final OSHRC decision comes down, this is the best interpretation we have of OSHA’s plans on using the general duty clause to make sure employers have a heat illness plan in place. A recommendation: Any business that needs a heat stress plan for its workers should read the entire 30-page decision (see the link below) to see exactly what OSHA expects from such a program.
The ALJ made some important points: Weather forecasts or even current conditions from the NWS may not reflect real working conditions. Other factors that increase the heat experienced by workers (such as being on top of a roof in open sunlight) have to be taken into account.
And one of the most important reminders this case provides: Workers have to be acclimatized to the heat.
We’ll keep you posted on future developments regarding OSHA’s requirements regarding worker heat stress.
(Secretary of Labor v. A.H. Sturgill Roofing Inc., OSHRC No. 13-0224, 2/23/15)
