Hunton Employment & Labor Perspectives

The United States Occupational Safety and Health Administration (“OSHA”), does not have a safety standard specifically addressing extreme weather. Instead, OSHA relies on the General Duty Clause of the Occupational Safety and Health Act to address identified hazards to workers in extreme weather. The General Duty Clause requires employers to provide employees “a place of employment which [is] free from recognized hazards that are causing or are likely to cause death or serious physical harm.”

Seven states (California, Colorado, Maryland, Minnesota, Nevada, Oregon, and Washington) have enacted laws addressing the hazards to workers that can arise from extreme heat. Washington and Minnesota, however, are the only states that have worker safety standards which address potential hazards to workers in cold weather conditions. Minnesota’s state OSHA plan requires that indoor places of employment must be kept at a minimum temperature of 65 degrees Fahrenheit (if light work is performed) and 60 degrees Fahrenheit (if heavy work is performed). Washington’s state OSHA plan has a cold stress rule that applies to firefighters only. Washington applies a general rule for all other employers to protect employees from cold weather.

Several states currently are considering legislation that would address the potential hazards to workers from cold weather. Illinois House Representative Edgar Gonzalez Jr. introduced the Workplace Extreme Temperature Safety Act (H.B. 3762) this year which would require employers to create plans to prevent temperature-related injury and illness. The plans would be required to include:

• Regular monitoring for employee exposure to cold to determine whether an employee’s exposure has been excessive;
• Providing warm, non-caffeinated beverages in immediate and safe proximity to cold impacted employees;
• Providing cold impacted employees with paid rest breaks and access to warming stations sheltered from the wind and any precipitation;
• Providing an emergency response for any employee who has suffered injury as a result of being exposed to excessive cold;
• Limiting the length of time an employee may be exposed to heat or cold during the workday; and
• Establishing guidelines for the usage of heat insulating personal protection equipment for workers exposed to temperatures below 65 degrees Fahrenheit for light activity and 60 degrees Fahrenheit for moderate to heavy activity.

Similarly, earlier this year Rhode Island State Senator Louis DiPalma introduced legislation (SB-0586) which would provide protections to employees in extreme temperatures. Under the measure, “extreme temperatures” are defined as at or below thirty-two (32) degrees Fahrenheit. The proposed law would require employers to provide paid rest breaks, warming stations, personal protective equipment, and other protections from extreme cold temperatures. Employers would be required to provide additional protections for employees who work in vehicles, warehouses, or those who work outdoors, including on construction sites.

Although both the Illinois and Rhode Island proposed legislation failed to become law this year. The bills are expected to be reintroduced. Other states have similar initiatives.   State lawmakers in sixteen other states across the country have proposed legislation addressing temperature protections in the workplace, indicating that this is a growing priority for lawmakers.

Takeaways

The legal landscape surrounding safety standards for cold weather working conditions is changing and may result in multi-state employers having to navigate various complex requirements. Variations in state requirements make compliance more complicated and expensive for employers who operate in multiple states. Employers must ensure that their workplace safety rules comply with all applicable current laws. Employers are encouraged to consult their legal counsel to assess whether their workplace safety rules comply with the requirements in each of the jurisdictions in which they operate.