Deny it or not, climate change is not just coming; it’s here. And it’s not just homes in newly flood-prone areas, or towns threatened by year-around fire season that are at risk. Workers, by nature of their employment are also at risk — by heat, fires, floods, tornadoes and hurricanes. The rising frequency and intensity of these hazards raises the question as to whether the Occupational Safety and Health Administration — whose job is to assure that workers have a safe workplace — will be able to adequately and rapidly address new threats.
Runaway climate change is making extreme weather more common and deadly, bringing new dangers to work we’ve thought of as safe.
Last December, the nation witnessed the tragic deaths of 16 workers when huge tornadoes hit workplaces at the Mayfield Consumer Products plant in Western Kentucky and an Amazon warehouse in Edwardsville, Illinois. As Mother Jones writer Emily Hofstaedter describes:
Those workers weren’t alone in risking their lives for their jobs—far from it. Runaway climate change is making extreme weather more common and deadly, bringing new dangers to work we’ve thought of as safe. Twisters are striking in new territory and throughout more of the year, especially in the Midwest and Southeast. That’s also true for flood-level rains, which adds hazards to ordinary commutes, let alone trucking or car-based gig work. Full-time drivers have to weigh those risks against hungry kids or the threat of eviction—a section missing from the DoorDash manual. Further west, wildfires are driving extreme air pollution, a killer for the millions of Americans who work outdoors. And for workers everywhere from Big Ag to Amazon, longer, hotter summers are already costing lives.
Hofstaedter also points out the the disproportionate victims of climate-related workplace hazards are workers of color. In addition to farm workers,
On the typical Amazon warehouse floor, three out of four workers are nonwhite. In 2019, when wildfires threatened tony Brentwood, Los Angeles—where the average house runs more than $2,000,000—numerous homeowners evacuated without a word to housekeepers and gardeners, many of whom still showed up to work. (85 percent of Brentwood homeowners are white; most of their household workers hail from Mexico and Guatemala.) In the last decade, a third of workers killed by heat were Latino, twice their proportion of the workforce. And at wages of $8 to $11 an hour, few Mayfield workers could have stayed home as long as the plant stayed open
OSHA currently has no standard to protect workers against occupational exposure to excessive heat. Some states, such as California, have standards that apply to some workers. OSHA has launched work on a heat standard, but it may take many years (or decades, depending on the party affiliation of the President) until a final standard is issued.
OSHA Sends Amazon a Letter
OSHA also has no comprehensive standard that requires employers to have emergency action plans (EAPs) although a few individual standards require certain covered companies to have such plans. Even those standards, however, do not detail what the EAPs must include.
When there is no specific OSHA standard that covers a hazard, OSHA must use the legally burdensome General Duty Clause which requires employers to provide a safe workplace. In the Edwardsville Amazon case where 6 warehouse workers died, OSHA determined that “Since no OSHA standard applies and it is not considered appropriate at this time to invoke Section 5(a)(1),” the agency sent Amazon a Hazard Alert Letter (HAL) describing three major failures in Amazon’s emergency response program that led to the fatalities. OSHA sends HALs when there is not enough evidence to sustain a General Duty Clause violation. The letters identify risk factors and recommends to the employer “that you voluntarily take the necessary steps to eliminate or materially reduce your employees’ exposure to the risk factors described above.”
Although Amazon had an Emergency Action plan (EAP), OSHA identified three workplace conditions as risk factors
- The megaphone, identified by the Emergency Action Plan (EAP) to be used to activate the shelter-in-place procedure, was locked in a cage and not accessible.
- Some employees did not recall where they were supposed to shelter-in-place during an emergency and did not recall ever participating in any severe weather or shelter-in place drills. Consequently, some employees took shelter in the south restroom, although the north restroom was the designated shelter location
- Although Amazon had a written EAP containing a section that addressed severe weather emergencies, it was not customized with specific instructions associated with tornadoes, which are likely to happen in Illinois, and instead discussed response to a hurricane. In addition, the EAP did not specifically identify the location of the designated shelter area.
So given that Amazon’s clearly flawed emergency response plan contributed to the deaths of 6 workers, why did OSHA choose not to issue a General Duty Clause violation?
So given that Amazon’s clearly flawed emergency response plan contributed to the deaths of 6 workers, why did OSHA choose not to issue a General Duty Clause violation? It’s hard to tell exactly. But as I mentioned above (and experienced in my many years at OSHA), General Duty Clause violations are often legally difficult to sustain when they’re taken to court (which Amazon would surely do.) The Amazon facility had an EAP and although it was clearly insufficiently implemented, Department of Labor attorneys are often reluctant to use the General Duty Clause when the employer has done something, even if it hasn’t done enough and didn’t do it well.
OSHA recommended (but did not require) in the HAL that Amazon
- Ensure that all employees are provided training and participate in emergency weather drills.
- Include site-specific information in severe weather emergency plans.
- All audible warning devices and locations of the device should be clearly identified in the severe weather emergency plan and readily accessible.
Even though OSHA felt that it could not issue a General Duty Clause violation, the existence of the HAL may make it easier for OSHA to issue a violation against Amazon should there be future situations where Amazon fails to adequately protect workers from emergencies. OSHA Regional Administrator Bill Donovan stated in a Press Release that:
These tragic deaths have sparked discussions nationwide on the vital need for comprehensive workplace emergency plans. Employers should re-evaluate their emergency plans for the safest shelter-in-place locations and prepare before an emergency to ensure workers know where to go and how to keep themselves safe in the event of a disaster.”
Meanwhile, Kentucky runs its own OSHA program and is currently investigating the deaths at Mayfield Consumer Products. They have until mid-June to conclude the investigation.
OSHA has information on Emergency Action Plans here.
Curse You Mother Nature!
Is Amazon taking the letter seriously? Hard to say, although they clearly know who to blame for the deaths: Mother Nature.
Amazon spokesperson Kelly Nantel says the company has already increased their safety and emergency preparedness drills and will consider any OSHA recommendations that are not already in place. In a statement, she adds “The tornado that hit our delivery station was extreme and very sudden, with winds that were much like the force of a category 4 hurricane, and we believe our team did the right thing, moving people to shelter as soon as the warning was issued.” Nantel says all Amazon buildings — including the Edwardsville delivery station — have emergency plans that identify exit routes and shelter areas.
What Is To Be Done?
The House Oversight Committee has launched an investigation into Amazon’s labor practices, particularly the Edwardsville catastrophe. The Committee has asked Amazon to turn over information related to a deadly warehouse collapse. The Committee will also be looking at “Amazon’s response to other extreme weather events impacting warehouse workers. They pointed to a dangerous heatwave last year in the Pacific Northwest, during which employees claimed they toiled in warehouses that reached 90 degrees.” Stay tuned.
OSHA needs to determine how it will respond to climate change-related workplace hazards.
The real message here, of course, is that OSHA needs to determine how it will respond to climate change-related workplace hazards. In addition to the heat standard, OSHA clearly needs a comprehensive emergency response standard that will require employers to have a program that will protect workers against whatever emergencies they face. Workers should be allowed to participate in the development of EAPs, and must be protected against retaliation should they take action to protect themselves in an emergency situation. Reports from both the Amazon warehouse and the Mayfield facility indicated that workers were threatened with termination if they refused to work through the tornado.
But addressing these issues won’t be easy for OSHA. It already takes many years — or decades — to issue a major OSHA standard. And it will only get worse. OSHA’s standards budget is tiny and Congress has refused to raise it even up to the already low level that existed before the Trump administration. OSHA already has infectious diseases, workplace violence, process safety management and heat clogging up its narrow regulatory pipeline. Unless OSHA figures out a way to speed up the regulatory process, or make better use of the General Duty Clause, workers are on their own.
Unless, of course, they join together to form unions.