LABOR AND INDUSTRIES
Effective Date of Rule: June 18, 2007.
Purpose: The Washington state constitution mandates that "The legislature shall pass laws for the protection of persons working in mines, factories, and other employments dangerous to life or deleterious to health."1 In enacting chapter 49.17 RCW, Washington Industrial Safety and Health Act (WISHA), the Washington legislature found "that personal injuries and illnesses arising out of conditions of employment impose a substantial burden upon employers and employees in terms of lost production, wage loss, medical expenses, and payment of benefits under the Industrial Insurance Act. Therefore, in the public interest for welfare of the people of the state of Washington and in order to assure, insofar as may be reasonably possible, safe and healthful working conditions for every man and woman working in the state of Washington, the legislature ... in keeping with the mandates of article II, section 35 of the state constitution, declares its purpose by the provisions of this chapter to create, maintain, continue, and enhance the industrial safety and health program of the state..."2
WISHA mandates that the director of L&I shall "[p]rovide for the promulgation of health and safety standards and the control of conditions in all work places concerning ... harmful physical agents which shall set a standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity."3
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-related illness. 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-related illness 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, L&I 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-related illness in Washington (also in the Yakima area in a lawn-service business). L&I also found approximately four hundred fifty workers' compensation claims for heat-related illness during that same time.
Based on this information, L&I evaluated its existing rules to determine if they adequately addressed heat-related illness. After this evaluation, L&I believed that these fatalities and illnesses may have been prevented with rules that are more protective of workers. In Rios v. Dept. of L&I, the Washington supreme court concluded that L&I must consider rule making for recognized workplace hazards.4
Prior to the summer of 2006, L&I held extensive meetings with business and labor representatives and worker advocates, and began developing an awareness and education campaign that would occur during the summer regardless of the final decision.
After considering the available options, L&I 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 was effective June 1, 2006, through September 27, 2006.
The emergency rule amended a current rule to clarify that every employer must evaluate their workplace and have procedures in place if their employees will be at risk from heat-related illnesses. Employers were required to look at things such as adequate water and shade, how to recognize heat-related illness, and what to do about it.
In addition, L&I conducted a coordinated hazard-awareness campaign with business and labor organizations and, as part of regularly scheduled inspections and consultations in affected industries, L&I staff visited farms and other employers all summer to make sure they were protecting their workers from heat stress.
Some worker advocate groups felt very strongly about the heat-related illness issue and didn't believe the emergency rule was specific enough. On the other hand, some employers wanted no rule at all.
Last summer, Washington state suffered the loss of two employees due to heat-related illness.
|•||On May 18, 2006, an employee passed away as a result of heat-related illness he developed on July 12, 2004. The employee was a roofer and collapsed while working. He arrived at the emergency room with a core temperature of 108ºF. The employee did return to consciousness but never fully recovered. At the time of his death, he was awaiting a liver transplant. The claim cost was $216,000 before pension.|
|•||On June 26, 2006, at approximately 2:30 p.m., a laborer/pipefitter became ill on an excavation project in Carson, Washington. The crew had been working since 8:30 a.m., and the ambient temperature rose throughout the day to over 100 degrees. This employee was in and out of a 4-foot-deep trench laying, cutting and joining water pipe. The employer, other employees and a PUD inspector on the site state that the deceased neither showed nor complained of signs or symptoms of heat-related illness. He drank 4-1/2 bottles of water during the day and ate his lunch. None of the crew took formal breaks, but they were allowed to if they wanted. He wore lightweight clothes, and had no medical condition that the employer knew of. The employer provided on-scene first aid until emergency medical help arrived. He was transported to Emmanuel Hospital in Portland, Oregon, where he died five days later, on July 1, 2006.|
After the expiration of the 2006 emergency rule, L&I consulted with DOSH compliance and consultation staff and held a stakeholder meeting to discuss the experiences with the emergency rule and preproposal draft issues. In addition, on January 26, 2007, L&I received a petition for rule making from Columbia Legal Services with specific recommendations for rule requirements and content. Based on this input, L&I developed a draft rule that was significantly different from the emergency rule language adopted last summer. This language clearly communicates the department's expectations while allowing employers the ability to create heat-related illness procedures that will be most effective for their worksites. The draft rule was sent to stakeholders for a review process. L&I also held a stakeholder meeting. The emergency rule language is a result of this process.
While L&I plans to continue development of a permanent heat-related illness rule, it is important to have a rule that provides clear expectations to employers in place during the summer of 2007. This rule is intended to reduce or eliminate the number of serious incidents and fatalities by increasing worker protection from heat-related illness while the department continues the permanent rule-making process. An emergency rule is necessary to ensure protection of workers during the summer months when there is a greater risk for heat-related illness. In addition, L&I will provide awareness training for employers over the summer.
1Wash. Const. art. 2 § 35.
4Hillis, 131 Wn.2d at 383.
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: See Purpose above.
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 8, Amended 0, 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 8, Amended 0, Repealed 0.
Date Adopted: June 5, 2007.
WAC 296-62-095 Heat-related illness in the outdoor environment.
(2) WAC 296-62-095 through 296-62-09570 does not apply to incidental outdoor exposure.
(2) Drinking water means water satisfying the department of health's requirements as potable water suitable for drinking by the public. Water packaged as a consumer product is an acceptable source of drinking water.
(3) Environmental factors for heat-related illness means working conditions that increase the susceptibility for heat-related illness including air temperature, relative humidity, radiant heat from the sun and other sources, conductive heat sources such as the ground, air movement, workload severity and duration, and personal protective equipment worn by employees.
(4) Heat-related illness means a medical condition resulting from the body's inability to cope with a particular heat load, and includes, but is not limited to, heat cramps, heat rash, heat exhaustion, fainting, and heat stroke.
(5) Heat-related illness hazard means exposure to environmental factors for heat-related illness.
(6) Incidental outdoor exposure means limited nonstrenuous outdoor exposure such as an employee that works in an air-conditioned building who may be outdoors to travel from one building to another or a forklift operator regularly working in a warehouse who occasionally drives a load outside the warehouse.
(7) Outdoor environment means an environment where work activities are conducted outside of a building shell (generally referring to a ceiling and at least three sides). Environments such as vehicle cabs, sheds, and tents or other nonpermanent structures may be considered an outdoor environment when the environmental factors are not controlled.
(8) Personal factors for heat-related illness means factors including, but not limited to, an individual's age, degree of acclimatization, medical conditions, water consumption, alcohol consumption, caffeine consumption, nicotine use, and use of prescription and nonprescription medications that affect the body's water retention or other physiological responses to heat.
(1) Identification and evaluation of temperature, humidity, and other environmental factors associated with heat-related illness;
(2) Provisions to prevent, control, and correct hazards associated with the occurrence of heat-related illness including, but not limited to:
• The provision of rest breaks that are adjusted for environmental factors;
• Encouraging frequent consumption of water, as described in WAC 296-62-09560 (2)(e) Information and training; and
(3) Procedures for responding to signs or symptoms of possible heat-related illness and accessing medical aid.
(2) Employees showing signs or demonstrating symptoms of heat-related illness must be carefully evaluated to determine whether it is appropriate to return to work or if medical attention is necessary.
(2) Employee training. Training in the following topics must be provided to all employees who may be exposed to a heat-related illness hazard.
(a) The environmental factors that contribute to the risk of heat-related illness;
(b) Awareness of personal factors that may increase susceptibility to heat illness;
(c) The employer's procedures for identifying, evaluating, and controlling exposure;
(d) The importance of removing personal protective equipment during all breaks;
(e) The importance of frequent consumption of small quantities of water. One quart or more over the course of an hour may be necessary when the work environment is hot and employees may be sweating more than usual in the performance of their duties;
(f) The importance of acclimatization;
(g) The different types of heat-related illness and the common signs and symptoms of heat-related illness;
(h) The importance of immediately reporting to the employer, directly or through the employee's supervisor, symptoms or signs of heat illness in themselves, or in co-workers;
(i) The employer's procedures for responding to symptoms of possible heat-related illness, including how emergency medical services will be provided should they become necessary; and
(j) The purpose and requirements of this standard.
(3) Supervisor training. Prior to assignment, supervisors must have training on the following topics:
(a) The information required to be provided in subsection (2) of this section;
(b) The procedures the supervisor is to follow to implement the applicable provisions in this section;
(c) The procedures the supervisor is to follow when an employee exhibits signs or symptoms consistent with possible heat-related illness, including emergency response procedures;
(d) Procedures for moving employees to a place where they can be reached by an emergency medical service provider, if necessary; and
(e) How to provide clear and precise directions to the emergency medical provider who needs to find the work site.