In July 2006 New York City Mayor Michael R. Bloomberg issued an Executive Order declaring a State of Emergency "because of the extreme temperatures and humidity being experienced by the City." Mayor Bloomberg advised that "extreme conditions can cause heat exhaustion and heat stroke in residents [and] the increased demand for electricity for residents and businesses to run air conditioners and other cooling devices can cause power disruptions. These conditions imperil public safety and health."
That summer,
140 deaths in New York City were attributed to heat stroke or medical conditions exacerbated by extreme heat. Unfortunately, some weather experts
expect this summer to be hotter and/or more humid than average.
From an employment law perspective, there are practical ways for you to keep your cool during a heat wave by planning ahead for such conditions, developing appropriate policies and procedures, maintaining safe and comfortable working conditions, maintaining employee productivity, preventing workplace heat-related illnesses or injuries, and complying with relevant employment and safety laws and regulations.
What is extreme heat? The
Federal Emergency Management Agency (FEMA) defines a "heat wave" as a "prolonged period of excessive heat, often combined with excessive humidity." FEMA advises that extreme heat pushes the human body beyond its limits by slowing body evaporation and causing it to work extra hard to maintain a normal temperature. The public health hazard is serious enough for the U.S. Department of Commerce, National Oceanic and Atmospheric Administration, to publish a safety brochure titled
Heat Wave: A Major Summer Killer.
Even greater hazards in cities The potential for heat-related problems in urban areas like New York City is even greater. Asphalt and concrete store heat longer and gradually release it at night, producing higher nighttime temperatures, known as the "
urban heat island effect." My dogs Dublin and Gepetto, pictured above, enjoy getting out of Manhattan every weekend in the summer for this very reason. Indeed, the New York City Office of Emergency Management (NYCOEM) has issued a brochure,
Ready New York: Beat The Heat, which warns that "on warm summer days, the City can be as much as 10 degrees warmer than surrounding areas . . . [as] [t]he City's infrastructure -- largely made up of asphalt, concrete and metal -- traps the heat, leading to higher temperatures."
Issues and recommendations for the private employer While employers have no control over
Mother Nature, they can and should take appropriate steps to protect the health, safety, and welfare of their employees in anticipation of and during heat-wave conditions. Private- sector employees in New York are covered by the federal Occupational Safety and Health Act of 1970 (OSH Act). Neither the OSH Act nor the Occupational Safety and Health Administration (OSHA) has a specific provision or regulation regarding heat stress. The OSH Act's
General Duty Clause, however, requires employers to "furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." OSHA has used the General Duty Clause in citing employers that have allowed employees to be exposed to potential serious harm from excessively hot work environments.
OSHA guidance for employers OSHA offers some
guidance for "acceptable methods for employers to reduce heat stress hazards in the workplace," including, but not limited to:
1. permitting workers to drink water at liberty;
2. establishing provisions for a work/rest regimen so that exposure time to high temperatures and/or the work rate is decreased; and
3. developing a heat stress program that incorporates the following:
- a training program informing employees about the effects of heat stress and how to recognize heat-related illness symptoms and prevent heat- induced illnesses;
- a screening program to identify health conditions aggravated by elevated environmental temperatures;
- an acclimation program for new employees or employees returning to work from absences of three or more days;
- specific procedures to be followed for heat-related emergency situations; and
- provisions that first aid be administered immediately to employees displaying symptoms of heat-related illness.
OSHA also has published a
Heat Stress Card (OSHA Publication 3154), which is a concise summary of factors causing heat stress, symptoms of heat stress, heat exhaustion, and heat stroke and recommendations for employees. It might be a particularly useful workplace poster this summer.
Thermal comfort policy You should also consider adopting a thermal comfort policy demonstrating your commitment toward protecting the health and safety of your employees during periods of high heat and humidity. Obviously, adjustments should be tailored to the type of industry, standard uniform or attire required, location of work (outdoor vs. indoor), and requisite physicality of labor. Below are some measures under a thermal comfort policy that could be taken when the heat index approaches a dangerous level:
• Maintain effective air conditioning or other cooling devices. Although OSHA has set no boundaries on
office temperature, a thermally comfortable work environment not only helps protect employee health and safety but also is simply good business to optimize employee productivity and workplace morale. When appropriate, you should consider distributing portable air-cooling devices, moving desks away from windows, installing effective window shades and ceiling fans, and ensuring cross ventilation.
• Provide an optional relaxed dress code. Allow employees to wear light, well-ventilated, but appropriate attire. FEMA and NYCOEM advise people to wear lightweight, light-colored, loose-fitting clothing that covers as much skin as possible during extreme heat conditions. Note, however, that casual attire allowances
raise issues relating to gender discrimination (e.g., permitting women but not men to wear flip-flops or tank tops). It's recommended that such optional, casual attire policies be gender-neutral and require professional and appropriate clothing.
• Allow flexible work schedules. When possible, allow employees to arrive earlier or stay later to avoid the often sweltering rush-hour commute and maximum heat period during middle and late afternoon. FEMA and NYCOEM advise people to avoid strenuous outdoor activities during the sun's peak hours -- 11:00 a.m. to 4:00 p.m.
• Allow more frequent rest periods/breaks and provide a ready supply of cold water and cool drinks. Give your employees plenty of opportunities to rest, and provide them with
cold water to help them cool down and recharge.
In addition to implementing such mitigating measures, you should have in place a comprehensive emergency preparedness plan that addresses extreme heat and utility/power disruptions. The plan should address preventive measures, test runs, employee education, and emergency response in the event of a heat advisory or warning.
Other potential employment law issues Extreme heat conditions that cause attendance failures or office closures also raise wage payment and deduction issues under the
Fair Labor Standards Act (FLSA) as well as disability accommodation issues under the
Americans with Disabilities Act (ADA) and state and local disability discrimination laws. While you generally can't reduce an exempt employee's compensation under the FLSA, there are limited exceptions. You should review your policies and practices to ensure compliance with those laws.
For example, in a
2005 opinion letter, the U.S. Department of Labor noted in a specific factual context that when an employee is absent because of inclement weather, such as heavy snow that prevents him from getting to work because of transportation difficulties, he is absent for personal reasons and you may deduct one full day's absence from his salary. Partial- day absences (late arrival or early departure because of weather), however, require a full day's pay for exempt employees. You should consult with your
labor counsel before any deductions are made from an exempt employee's salary to avoid jeopardizing his exempt status. The most important thing is to plan ahead for such attendance issues and communicate clear, understandable policies that apply during a heat or other weather emergency.
The ADA or state and local disability discrimination laws may require accommodations to heat-sensitive, qualified, disabled employees. Accommodations could be:
• maintenance of a specific work site temperature;
• use of a cool vest or other cooling clothing;
• use of a personal fan/air conditioner at the workstation;
• allowing flexible scheduling and flexible use of leave time; and
• allowing
work from home during hot weather (also pertinent for employees with mobility impairments).
Finally, you should be aware that the National Labor Relations Act (NLRA) may afford employees
certain protections when they band together to protest extreme weather conditions. In
one such case, the U.S. Supreme Court found that seven nonunion employees who walked out to protest the company's failure to provide adequate heat were protected under the NLRA.
Plan for The Dog Days This summer is and will continue to be hot. Protecting your workforce during periods of extreme heat is essential not only for their safety and welfare but also for your company's ability to function. It's important to understand how hot is "too hot" in accordance with heat indexes and OSHA standards and to educate your workforce on the dangers of excessive heat and heat-related illnesses. Developing contingency plans, policies, and procedures to cope with extreme heat conditions that are compliant with labor and employment laws is the first step to avoid being bitten by the dog days of summer.
