An Overview of Washington's Emergency Heat Stress Rule
2007-21
In June 2007, the Department of Labor and Industries implemented an emergency agency rule to help educate employers and workers of the dangers of heat-related illness. According to the U.S. Bureau of Labor Statistics, there were 18 deaths in the United States in 2004 due to “Exposure to Environmental Heat.” The rule was effective from June 18th through October 3rd – although businesses must have written procedures and training material on heat-related illness (HRI) available all year long. The rule is scheduled to return in 2008.
In Washington state, according to the Department of Labor and Industries (L&I), there have been three outdoor work-related deaths due to heat during the past 13 years. L&I defines heat-related illnesses as heat fatigue, heat rash, fainting, heat cramps, heat exhaustion and heat stroke.
The new rule requires employers who have one or more employees performing work outdoors to:
Most employees should not have to endure an unsafe work environment. Unfortunately, between the necessity for industries that require dangerous work, and the fact that accidents do happen, there are a number of fatalities in any industry every year.
While L&I’s goal is a noble one—keeping employees alive—it needs to take into account the effectiveness of regulations that encourage workers to drink water when they are working in a hot environment. Employers are worried that there is only so much a supervisor can do to prevent heat illness and that employees need to use common sense and good judgment to determine when they may require rest and re-hydration.
The rule also mandates that an employer must have a written procedure for HRI prevention. The written procedure must include:
Employers must then train any employee supervisors prior to training the employees themselves. In addition to the training employees receive, employers must also create systems for supervisors to follow in order to prevent or care for employees suffering from HRI.
Many of the objections from the business community stem from their worry about how L&I will handle enforcement of the regulation. The objections can be summed up with the old saying “you can lead a horse to water but you can’t make it drink.” Essentially, many in the business community are wary that they will be held legally liable for an employee’s bad choice – when an employee fails to heed common sense and training while remaining hydrated. These new HRI regulations would not have prevented this type of fatality.
The three deaths due to heat exposure are tragic, but they should be put into context. The latest worker to die from heat-related illness was in June 2006. According to L&I’s investigation of the incident, the employer had provided water for the workers and the employee that died had consumed five bottles of water while laying an underground water line. It was evident he did not die from a lack of access to, or consumption of, water.
Unfortunately, issuing a ruling on HRI is becoming a top-down, one-size-fits-all agency ruling that is making perfect the enemy of good. There are myriad of circumstances that can determine which employees are more likely to be susceptible to HRI. The overall physical condition of an employee, the nature of the physical work, the heat index (air temperature and level of humidity), whether any alcohol or medication was taken that could affect an employee’s ability to acclimatize, etc.
According to the Bureau of Labor Statistics, Washington state had 87 on-the-job fatalities in 2006. This puts Washington in the middle of the pack of states in the number of work-related fatalities. Only one of the fatalities in 2006 was due to heat-related illness and there have been none since then.
In the 1995-2004 time period, according to a Safety & Health Assessment & Research for Prevention study, there were 446 HRI-related workers’ compensation claims in Washington state. Out of the 446, only 33 were considered “compensable” (involving more than three lost workdays compensated by the state or employer). There was one death during that time period due to HRI; the other two HRI fatalities occurred after 2004. In contrast, there were 1.44 million accepted state fund claims during that same time (1995-2004). HRI accounted for 0.0003% of all worker comp claims during the ten-year period. Typically, several years pass with no outdoor heat-related deaths.
As with many physically demanding jobs, a certain amount of safety training is required in order to create a safe work environment. But there are no guarantees, which is why the employer community is worried. Employers are worried that no matter how much L&I-endorsed training is provided and no matter how many times supervisors encourage their employees to hydrate adequately, there is always a chance that an employee disregards the safety procedures, is injured because of their own neglect, and then the employer is held liable, creating a field day for trial lawyers.
The costly heat-stress rule will not improve worker safety, but it will make it a lot harder to run a successful business in Washington state. Three deaths over the past 14 years, while tragic, most likely would not have been prevented by further government regulations.