This article originally appeared in the August 26, 2022 edition of the Daily Journal of Commerce Oregon.
The June 2021 Pacific Northwest heat wave resulted in hundreds of deaths across Oregon and Washington, including several in workplaces. While Oregon OSHA had already begun rulemaking to address workplace heat illness, the extreme temperatures obviously gave those activities added urgency.
Following the heat wave, Oregon Administrative Rules 437-002-0156 were enacted for heat illness prevention. Meanwhile, Washington Administrative Code 296-62-095, regarding outdoor heat exposure, have been in effect since 2008 and were expanded in July 2021. Familiarity with these rules is key to a contractor keeping its employees safe and complying with the law.
The two sets of rules – largely identical, but with some important differences – have some key provisions. Following is an overview of what construction contractors need to do to avoid employee illnesses and agency fines.
Both sets of rules are triggered by a threshold temperature. The Oregon rules apply when an employee performs work in a setting, either indoors or outdoors, in which the heat index is 80 degrees or higher. Washington’s rules apply at varying temperatures, depending on the employee’s clothing. If the employee is dressed in PPE, such as a chemical resistant suit, the rules apply at 52 degrees; they apply at 77 degrees if the employee is attired in double-layer woven clothes, such as coveralls; and at 89 degrees for all other clothing types. Both sets of rules exempt certain work situations from their purview, such as when an employee’s exposure to heat is merely incidental (i.e., for less than 15 minutes) and other exemptions not generally applicable to the construction industry (e.g., emergency services).
Both sets of rules also require that employers offer sufficient shade for their workers. Under the rules, shade is not sufficient “when heat in the area of shade defeats the purpose of shade, which is to allow the body to cool,” such as an unair-conditioned vehicle. The rules provide that an employer must provide “one or more shade areas that are immediately and readily available.”
The rules provide specifications for the shaded areas, requiring that: (a) the shade area must either be open to the outside air on at least three sides or be ventilated mechanically; (b) the amount of shade present must be enough to accommodate the recovering employees; (c) the shade must be located as close as practical to the work area; and (d) shade present during meal periods must be enough to accommodate all employees on the meal period who remain on-site.
The Oregon rules further provide that if trees or other vegetation are used to provide shade, the thickness and shape of the shaded area must provide sufficient shadow to protect employees. The Washington rules further provide that the shaded areas must not adjoin a radiant heat source such as machinery or a concrete structure. Both sets of rules provide for limited exceptions to the shade requirement, with the Washington rules providing that “in lieu of shade, employers may use other sufficient means to reduce body temperature” and the Oregon rules providing that an employer need not provide access to shade when doing so “is not safe or it interferes with the ability of employers and employees to complete the necessary work” (e.g., during high winds). However, in such situations, Oregon employers must provide equivalent heat illness protection such as cooling vests or water-dampened cotton clothing.
Both sets of rules also mandate the provision of drinking water to employees. The Oregon rules define “drinking water” as “potable water that is suitable to drink and that is cool (66-77 degrees Fahrenheit) or cold (35-65 degrees Fahrenheit).” The Washington rules do not contain a water temperature specification but provide that water should be “suitably cool.” Both sets of rules require that the employer provide an employee at least 32 ounces (i.e., one quart) of drinking water per work hour and the opportunity to consume the water. They also provide that bottled water and “electrolyte-replenishing beverages that do not contain caffeine” (e.g., sports drinks) can be used as substitutes, though the Oregon rules specify that such substitutions should not “completely replace” drinking water.
Both sets of rules further provide for a set of “high-heat practices.” The Oregon rules provide that when an employer cannot limit an employee’s exposure to a heat index less than 90 degrees, it must: (a) provide a means for an employee to communicate, in the employee’s spoken language, with supervisors; (b) implement methods to promptly identify any employee suspected of experiencing heat-related illness, such as creating a mandatory buddy system; (c) designate at least one employee as authorized to call for emergency medical services; (d) when an employee works in a structure that does not have a mechanical ventilation system, employers must measure the indoor temperature and humidity and take action in accordance with the rules to reduce the employee’s exposure to elevated heat; and (e) provide a rest break schedule that allows the body to cool down and recover. The Washington rules are not as detailed in this regard, but provide for the provision of shade, discussed above, and require that employees take breaks for at least 10 minutes every two hours and must be paid unless taken during a meal period.
Both sets of rules further provide that employers must provide annual employee heat illness prevention training which discusses, among other things, the risk factors and signs of heat illness, procedures for complying with the rules, such as taking breaks in the shade, and the importance of water consumption. Additionally, the Oregon rules require employers to document compliance with the training requirements.
Finally, the Oregon rules require employers to establish three additional plans: (1) an emergency medical plan to address employee exposure to excessive heat; (2) an acclimatization plan (i.e., plan for employees to acclimatize to working in hot weather); and (3) a heat illness prevention plan that includes, among other things, how employees are to be trained, how to recognize heat illness, and how water and shade will be provided.
While the Pacific Northwest has not experienced a heat wave in 2022 comparable to the 2021 heat wave, it has nevertheless been a hot summer, with Oregon Gov. Kate Brown issuing a state of emergency from July 26–31 due to extremely high temperatures. Given that high temperatures in the summer are likely here to stay, employers should thoroughly review the relevant rules and ensure that they have the required plans and policies in place to both protect their employees and comply with agency requirements.
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