Limits of the General Duty Clause for heat stress

Although OSHA does not yet have a standard for heat illness prevention, the agency is in the early stages of developing a standard. OSHA can use the General Duty Clause to cite employers for known heat hazards, but faces some challenges when issuing those citations.

The General Duty Clause requires employers to furnish a place of employment free from recognized hazards causing or likely to cause death or serious physical harm. To prove a violation, OSHA needs to establish that:

1. The employer failed to keep the workplace free of a hazard to which employees were exposed;
2. The hazard was recognized;
3. The hazard was causing or likely to cause death or serious injury; and
4. A feasible means to eliminate or materially reduce the hazard existed.

Applying the General Duty Clause is difficult because OSHA must show (in each case) that the employer was aware of the risk. This is challenging for heat hazards because there is no threshold temperature or heat index that is dangerous to all workers. Factors such as temperature, wind, cloud cover, humidity, physical exertion, and required PPE all impact the risk. Further, individual worker’s health conditions, fitness level, and acclimation to heat also play a role. For example, what temperature and activity level is “too much” and did the employer provide “adequate” rest breaks?

With all these factors in play, OSHA must prove the existence of a recognized hazard, even if a heat-related fatality occurred. OSHA has failed to uphold citations even in cases involving an employee’s death. If a dozen employees worked on the same project under the same conditions, but only one suffered heat stress, should the employer have recognized the hazard or taken additional mitigation measures?

OSHA must largely rely on expert witness testimony to prove both the existence of a heat-related hazard and the availability of feasible abatement measures. Further, under the General Duty Clause, OSHA cannot require abatement before proving that the specific workplace conditions are hazardous.

A heat illness standard would document the existence of a hazard and create specific measures for employers to follow. OSHA would no longer need to prove the existence of a hazard in each case. Further, a standard would establish employer obligations to protect employees. For example, if OSHA required a written heat illness plan and the employer did not have a plan, OSHA could simply issue a citation for that failure.

Until OSHA publishes a final rule on heat illness, the agency’s only option is the General Duty Clause. To use it, OSHA must prove that a hazard exists, was known to the employer, was likely to cause death or serious harm, and that the employer’s mitigation methods were not adequate. And the agency must prove these things for each situation and each citation.

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