WSR 06-11-144




[ Filed May 23, 2006, 3:55 p.m. , effective June 1, 2006 ]

     Effective Date of Rule: June 1, 2006.

     Purpose: Temperature extremes (heat stress), WAC 296-62-09013. On July 18, 2005, a farm worker collapsed while cutting weeds with a machete in hop fields near Yakima. He died, and the coroner ruled that the cause of death was heat stroke. L&I investigated the death and later cited and fined the company for an inadequate safety program, not providing drinking water, and lack of training for workers. The safety program should have included a plan to prevent heat stress by providing rest breaks, shade, worker hydration and administrative controls such as a work-rest regimen.

     The citation was issued December 23, 2005, and the subsequent appeal was affirmed with a negotiated penalty of $3,000. L&I did not seek criminal sanctions since the violations cited were not considered willful (A prerequisite for a referral to a county prosecuting attorney).

     Immediately following this workplace death, we heard from farm worker advocates that they were very concerned about this fatality and that they wanted an emergency rule issued similar to California's emergency heat-stress rule. L&I responded by issuing a hazard alert to the agriculture industry, and then proceeded with a study to determine what was needed to protect workers for the 2006 summer season.

     L&I reviewed the workers' compensation injury and illness claims for the past ten years and found that one other person had died from heat stress in Washington (also in the Yakima area in a lawn-service business). We also found approximately four hundred fifty workers's compensation claims for heat-related illness during that same time. These fatalities may have been prevented with rules that are more protective of workers.

     During the past eight months, L&I considered the available options:

Do nothing.
Change an existing rule on indoor work in hot temperatures to include outdoor work in hot temperatures.
Propose a new standard on heat stress.
     During that time, we held extensive meetings with business and labor representatives and worker advocates, and began developing an awareness and education campaign that would occur this summer regardless of the final decision.

     In the end, we concluded that the best approach was to adopt an emergency rule that extends an existing rule on indoor work in hot temperatures to include outdoor work. The emergency rule will be effective as of June 1.

     The emergency rule says that every employer must evaluate their workplace and have procedures in place if their employees will be at risk from heat-related illnesses. They will be required to look at things such as adequate water and shade, how to recognize heat stress, and what to do about it.

     L&I will be launching a coordinated hazard-awareness campaign with business and labor organizations. We will be concentrating on businesses most affected by hot weather, such as construction - especially road work - and agriculture.

     As part of regularly scheduled inspections and consultations in affected industries, L&I staff also will be visiting farms and other employers all summer to make sure they are protecting their workers from heat stress.

     We acknowledge that some worker advocate groups feel very strongly about the heat-stress issue and don't believe this emergency rule is specific enough. On the other hand, some employers wanted no rule at all.

     We believe it was important to have a program in place this summer, along with an educational and awareness effort. The emergency rule is effective for one hundred twenty days. As the year goes by, we will evaluate the impact of the rule and gather information to determine what to do on a permanent basis.

     Citation of Existing Rules Affected by this Order: Amending WAC 296-62-09013 Temperature extremes.

     Statutory Authority for Adoption: RCW 49.17.010, 49.17.040, 49.17.050, 49.17.060.

     Under RCW 34.05.350 the agency for good cause finds that immediate adoption, amendment, or repeal of a rule is necessary for the preservation of the public health, safety, or general welfare, and that observing the time requirements of notice and opportunity to comment upon adoption of a permanent rule would be contrary to the public interest.

     Reasons for this Finding: A review of the accepted heat-related illness claims indicated that three hundred fifty outdoor heat-related illness incidents occurred from 1995 - 2004. This rule clarifies that the requirement to protect workers from temperature extremes applies to outdoor environments. This rule is intended to reduce or eliminate the number of serious incidents and fatalities by increasing worker protection from temperature extremes while the department is evaluating the need for a permanent rule. An emergency rule is necessary to ensure protection of workers during the summer months when there is a greater risk for heat-related illness. The department intends to provide awareness training for employers over the summer.

     Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted on the Agency's Own Initiative: New 0, Amended 1, Repealed 0.

     Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 0, Amended 0, Repealed 0.

     Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0;      Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 0, Amended 1, Repealed 0.

     Date Adopted: May 23, 2006.

Gary Weeks



AMENDATORY SECTION(Amending Order 73-3, filed 5/7/73)

WAC 296-62-09013   Temperature, radiant heat, or temperature-humidity combinations.   (((1) Workmen)) Workers subjected to temperature extremes, radiant heat, humidity, or air velocity combinations which, over a period of time, are likely to produce physiological responses which are harmful shall be afforded protection by use of adequate controls, methods or procedures, or protective clothing. ((This shall not be construed to apply to normal occupations under atmospheric conditions which may be expected in the area except that special provisions which are required by other regulations for certain areas or occupations shall prevail.))

[Order 73-3, § 296-62-09013, filed 5/7/73.]

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