Worker advocates burned up over lack of federal heat protections

OSHA has yet to establish a heat standard that would give employers requirements regarding water, rest and shade

Published May 15, 2019 4:00AM (EDT)


This piece originally appeared on FairWarning.

On a summer morning near Dayton, Ohio, a temporary worker began his first day with a commercial roofing company around 6:30 a.m.

Mark Rainey, 60, was assigned to a crew to rip off and dispose of an old bank-building roof. Within hours, as the heat index reached 85 degrees, his co-workers noticed the new guy was “walking clumsily,” then became ill and collapsed, according to documents from the U.S. Occupational Health and Safety Administration. Rushed to the hospital on Aug. 1, 2012, Rainey was diagnosed with heat stroke and a core body temperature of 105.4 degrees; he died three weeks later.

For the next 6 ½ years, the circumstances surrounding Rainey’s death became a vigorously fought battle between his employer and OSHA, highlighting the lack of a clear standard on heat protection for outdoor workers.

The job safety agency had issued two serious safety citations to A.H. Sturgill Roofing Inc. of Dayton, but the company appealed. In February, a divided OSHA appeals panel ruled in the company’s favor.

Yet even the business owner said the government’s lack of clear-cut regulations drove him into an exhaustive legal ordeal that wound up costing $225,000 to fight an $8,820 fine.

“It was terrible, but we did not have a single thing to do with him dying,” said Allen H. Sturgill, who attributed the death to the worker’s poor physical condition.

“People do need to take care of their employees – and we do. But why they (OSHA) didn’t have any criteria for what was right or wrong is beyond me. I can’t understand it.”

Neither can workplace safety advocates, who say the Sturgill case illustrates a big – and dangerous  – void.

Feds reject heat standard

To this day, OSHA has yet to establish a heat standard that would give employers specific requirements regarding water, rest breaks and shade. As it stands, federal OSHA inspectors must rely on a broad, general requirement to provide a safe workplace in order to cite an employer for heat violations.

Meanwhile, three states – California, Washington and Minnesota, along with the military – have created their own heat protections for workers.  In California, for instance, employers must provide water and shade to workers when temperatures reach 80 degrees or higher. Workers also must be given rest breaks every two hours when the thermometer hits 95 degrees or above.

This year, California took a step  toward becoming the first state to offer heat protections for both indoor and outdoor workers.

“To me, it’s completely irrational that the rest of the nation has yet to implement heat protection standards,” said Leydy Rangel, a spokeswoman for the United Farm Workers Foundation in California.

Climate change ups ante

While the dangers of excessive heat for workers is not new, climate change has catapulted the issue into critical status, worker advocacy groups contend.

From 1992 through 2017, heat killed 815 workers nationally and injured some 66,000, according to the Bureau of Labor Statistics. Safety experts and the government agree that the toll is undoubtedly higher, since heat symptoms can masquerade as other conditions, and many workers are afraid to speak up or acknowledge a problem.

Behind the statistics, the stories of lives lost in fruit orchards, construction zones and sweltering warehouses are devastating. Last year, the body of a 52-year-old farm worker was found in a Nebraska cornfield the day after he failed to return from laboring in 94-degree heat. In Los Angeles, a 63-year-old postal carrier was found dead in her non-air-conditioned mail truck on a day the temperature hit 117.

Both deaths took place in July – the “high noon” for heat-related tragedies.

New workers especially vulnerable

New workers, like Mark Rainey in Ohio, are most susceptible as research has shown their bodies need one to two weeks to gradually adjust to the heat.

The risk is high. A 2016 study of 23 heat deaths identified by OSHA found that 17 of the victims – or 74 percent  – died within their first three days on the job.

“There was little evidence that employers were monitoring weather conditions closely enough to make workplace adjustments to protect their workers,” according to the study by the American College of Occupational and Environmental Medicine.

The human tragedies ascribed to heat have prompted outrage and action.

After 63-year-old Peggy Frank was found dead in her Los Angeles mail truck last July, two Congressional Democrats introduced a bill that would require any Postal Service delivery vehicle to include air conditioning within three years.

The wife of a UPS driver in New Jersey started an online petition drive last year on  after her husband suffered a heat stroke in 2016 while driving a delivery truck without air conditioning. Theresa Klenk, a long-time nurse, has gathered nearly 500,000 signatures so far in her effort to get UPS to add air conditioning to its delivery fleet.

“The problem is only going to continue to get worse if we don’t start taking action,” said Shanna Devine of Public Citizen, a consumer and health advocacy group.

Heat campaign revs up

The idea of a federal heat standard has been floated for decades, raising concerns among some business organizations. But officials of major groups – including the U.S. Chamber of Commerce, the National Association of Home Builders and the American Farm Bureau Federation – either did not respond to requests for comment, or could not be reached.

Public Citizen and allied groups are pressing the case. In a national campaign begun last year, more than 130 organizations petitioned OSHA to begin the rulemaking process for a federal standard, raising the urgency of global warming. OSHA officials did not return calls seeking comment.

previous petition in 2011 had failed, with OSHA responding that it already had the ability to cite employers under its “general duty clause.”

After that defeat, two former OSHA directors joined sides with worker advocates in petitioning the agency once again in 2018. David Michaels, who had been OSHA administrator from 2009 to 2017, stated that the real reason the 2011 petition was denied was because the agency was swamped at the time working on other new rules.

Fast forward to this year, when advocates doubled down and sent a letter April 26 to top Labor Department officials, pressing again for a federal heat standard.  Signed by more than 100 state and national organizations, the letter said the general duty clause is “more difficult to enforce than a dedicated standard.”

“(A)s these tragic fatalities demonstrate, most employers will not implement practices to prevent heat stress in their workplace unless they are required to do so.”

Roofing company prevails

Some employers, however, say they do aggressively safeguard their workers from heat. In the Ohio death, Sturgill Roofing said it provided immediate access to ice, water, rest breaks and shade, without making workers fearful of reprisal.

In citing the company, OSHA accused Sturgill of violating the general duty clause by exposing employees to an excessive heat hazard while working on the roof in direct sunlight. It also cited the roofing company for failing to give workers sufficient training on recognizing and avoiding heat hazards.

In 2015, an administrative law judge affirmed both citations.  Then in February, in a 2-1 vote, the Occupational Safety and Health Review Commission reversed both citations – in part because the majority did not believe OSHA had proved that the 85-degree heat index that day amounted to “excessive heat.”

But the majority also noted that their decision was complicated by OSHA’s failure to adopt a federal heat standard that would give clear guidance to employers and workers alike.

“(The Labor) Secretary’s failure to establish the existence of an excessive heat hazard here illustrates the difficulty in addressing this issue in the absence of an OSHA standard.”

California teen succumbs to heat

California has been out front on the issue for more than a decade.

“We’ve seen more than 25 farm workers die in the span of 20 years,” said Rangel of the UFW Foundation in California. “Farm workers are afraid to speak up. They’re afraid when they don’t have fresh water. They don’t want to voice their concerns because of retaliation.”

Rangel’s brother nearly died of heat stress in the mid-2000s while picking table grapes near Bakersfield. She said she remembered hearing how the crew leader tried to resuscitate her teenage brother with blasts of air conditioning in his truck but hesitated to take him to the hospital, assuring the teen he would be fine.

Her father, also a field worker, insisted that his son be hospitalized, where he made a slow recovery.

“Prior to my brother getting sick, I had no idea the sun had such an immense power that could literally kill you,” said Rangel, who later worked in the fields herself. “It was completely avoidable. My brother did not have to suffer like that.”

Around the same time, a series of highly publicized farm worker deaths in California galvanized activists and awakened politicians. In 2006, the Golden State was the first to enact its own heat protection standard, enforced by Cal/OSHA, the state’s counterpart of OSHA.

But workers continued to die – including a pregnant 17-year-old laborer, Maria Isabel Vasquez Jimenez, who collapsed in May 2008 after working more than nine hours in a Central Valley vineyard without shade or sufficient water. Over the next three months, five more farm workers died.

After two lawsuits were filed in 2009 and 2012, accusing the state of failing to protect farm workers, Cal/OSHA agreed to step up enforcement.

California seeks indoor standard

The state is now considering a second major step. In April, Cal/OSHA released draft regulations that would extend heat protection standards to indoor workplaces.  If approved, California would be first in the nation to cover both indoor and outdoor job sites.

The new rule, which provides for water and rest breaks, would be triggered when indoor temperatures reach 82 degrees, with additional requirements when temperatures hit 87.

A coalition of 55 business groups, led by the California Chamber of Commerce, told Cal/OSHA in a February letter that members were “very concerned” about some provisions and wanted revisions. Among other things, the groups said they wanted to see that rules for indoor workers aligned with those for outdoor workers so that an employer with both “does not have to grapple with inconsistent standards.”

Indoor heat dangers have been identified in such places as warehouses, restaurants, bakeries, auto shops, garment factories and canneries.

One warehouse worker in Southern California, who asked not to be identified for fear of retaliation, said he and other employees are required to unload goods from metal shipping containers where the temperature inside the boxes has been recorded as high as 109.

“Even touching the side of the container can burn your skin,” the worker told FairWarning.

Because most are temporary workers, he said, they are reluctant to take breaks and are even “discouraged” by some supervisors from doing so.

“The more you go rest or get water, the more they look at you as someone who can’t do the job and needs to be replaced,” he said.

Tim Shadix, an attorney for the advocacy group Worksafe, said the road to indoor protections in California could take another year or more, but he is optimistic they will pass.

“I think it’s taken some time for the public and policy makers to recognize heat as an occupational hazard,” Shadix said. “A lot of people think that heat is just an uncomfortable condition we all have to put up with.”

By Marjie Lundstrom

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