heat osha

On June 20, 2023 postal worker Eugene Gates died from heat stroke while delivering mail on his route in Lakewood, Texas, during a sweltering summer heatwave that saw the temperature reach 98 degrees. The heat index — factoring in humidity — climbed to over 113 degrees that day.

Gates was not alone. OSHA estimates that 121 workers died from the effects of heat from 2017 to 2022, although the agency and most other experts believe that this is likely a significant undercount as heat related deaths can mimic deaths from “natural causes.” The Bureau of Labor Statistics reports that almost there were 34,000 work-related heat injuries and illnesses that required time away from the job between 2011 and 2020. These are self-reported by employers, and again are a significant undercount.

Heat hazards affect almost every construction, agriculture or outdoor worker (and many indoor workers) during the warm months of the year. For example,

Across the country, airport ground services workers, whether it’s cabin cleanersbaggage handlers, or others who have to be out on the tarmac, have reported facing vicious heat on the job. Rashele Bates, a 26-year-old who cleans plane cabins at the Charlotte, North Carolina airport and who is an active member of the Service Employees International Union (SEIU), told Vox she felt sick and nauseous on the job one day in late July after she and a coworker had been cleaning for about three hours without a proper break. Bates vomited, and her coworker passed out and went to the hospital.

“I’m sitting there drowning in sweat,” Bates recalls. The air conditioning isn’t always turned on in the plane while they work, Bates says, nor is there any air conditioning on the jet bridge connecting the plane to the terminal, where she and her coworker fell ill.

And it doesn’t take “extreme” temperatures to threaten workers’ health or lives.

A study looking at the effects of working outside in hot weather by New York City-based Turner Construction discovered many workers’ core body temperatures reached risky levels even on moderate summer days.

The heat pilot study, conducted over three days last summer with an average peak temperature of 88 degrees Fahrenheit, found that 43% of the 33 workers monitored had core temperatures reach over 100.4 F, even in “cooler than typical summer conditions.” OSHA lists 100.4 F as the benchmark for an elevated risk of heat stress.

OSHA Responds to Gates’ Death

Last month OSHA cited issued a $15,625 citation against the United States Postal Service in response to the death of Gates. OSHA doesn’t have a heat standard to protect workers so it used the General Duty Clause which simply requires employers to provide a safe workplace.

Gates’ wife was not pleased with the size of the penalty.

“I was mad. I was hurt. I was disappointed. Actually Kevin, it made me sick to my stomach,” the postal carrier’s widow Carla Gates told WFAA’s Kevin Reece.

“All I wanted was for the Postal Service to be held accountable for the death of my husband,” she said in reaction to the $15,625 proposed penalty. “No amount of money will bring my husband back. It was a slap in the face. It was an insult. It did no justice.”

“Not just for the Postal Service, for anyone that is working out in this hot Texas weather outside, that’s a death trap,” Carla Gates said.

“No amount of money will bring my husband back. It was a slap in the face. It was an insult. It did no justice.”

Gates’ widow was not the only one upset at the low penalty.

Kimetra Lewis, president of the National Association of Letter Carriers’ Dallas branch, said when she saw the dollar amount of the citation, she initially thought it was “a slap in the face.”

“I was like, ‘Oh my God, is that all they thought [Gates’] life was worth?’” she said.

But after reading the full text of the citation — and its requirement that USPS take certain steps to keep letter carriers safe in the heat — Lewis said she became “grateful because it is showing that the Postal Service had a role and responsibility in his death.”

Part of the problem is that $15,625 is the Congressionally set maximum penalty for a “serious” violation of the law.

OSHA also has the option of issuing a “willful” violation. A willful violation carries a penalty ten time as high as a serious violation: $156, 250.

Could OSHA have issued a willful violation in this case?

Was Gates’ Death A Willful Violation of the General Duty Clause?

In order to issue a General Duty Clause violation, OSHA must show that a hazard exists, that the hazard is capable of cause death or serious physical harm, that the hazard is “recognized” (by the employer or by the industry) and that there are feasible means of abatement — in other words, something can be done to eliminate or reduce the hazard.

In order to sustain a willful violation, OSHA must prove that the employer either knowingly failed to comply with a legal requirement (also known as purposeful disregard) or acted with plain indifference to employee safety.

OSHA clearly saw that a General Duty Clause violation was present. A deadly hazard was clearly present, USPS recognized it, and there would measures that could be taken to abate the hazard.

But OSHA did not find that it was a willful violation.

Postal workers like Gates had been getting mixed messages from their supervisors: “The Postal Service has both urged carriers to take breaks during extreme heat and then admonished them for taking too long to finish their routes.”

A little more background…

A recent Politico investigative story revealed that postal workers like Gates had been getting mixed messages from their supervisors: “The Postal Service has both urged carriers to take breaks during extreme heat and then admonished them for taking too long to finish their routes.”

And it was this mixed messaging that likely killed Eugene Gates:

A month before Gates died, his manager reprimanded him for taking too long to deliver the mail, known as “expanding street time.” The manager chided Gates for stopping “so many times on your way back to station it took you total 45 minutes,” according to the written reprimand obtained by E&E News.

Gates’ widow, Carla, didn’t know about the letter until after her husband’s death. But she believes that Gates, an Army veteran, felt pressured by it to follow orders and perform efficiently, even if he felt ill.

Politico reported that USPS “ignored its own heat safety programs and manipulated official records to hide those actions ahead of an unrelenting summer of extreme heat that killed scores of people across the U.S.”

USPS policy requires letter carriers to be trained each Spring to recognize the symptoms of heat illness and what to do if they feel sick.

But Gates didn’t receive training, and his managers “falsified” official records before his death to hide it, according to his widow, Carla, and leaders of the National Association of Letter Carriers union who are involved in the grievance. And he’s not the only one.

The mounting accusations by thousands of mail carriers come as the debt-plagued USPS is pushing workers to make faster deliveries amid growing competition and as temperatures catapult to heights never before recorded in human history. Its policies have already drawn scrutiny from some members of Congress for requiring carriers to work during hot periods of the day, raising questions about the Postal Service’s ability to protect its workers from climate change.

So does all of this amount to a willful violation:  “knowing failure” to comply with the law or “plain indifference” by the Postal Service?

A case could be made, but OSHA decided in this case that the answer was no.

So Why Not?

First, it is impossible to know from the outside exactly why OSHA makes difficult enforcement decisions. But we can speculate.

Issuing willful violations (or General Duty Clause violations) isn’t easy for OSHA. Not only does OSHA have to prove that prove that the employer either knowingly violated the law or was plainly indifferent to employee safety, but OSHA has to prove it to a judge (or the Occupational Safety and Health Review Commission) if the employer contests the violation.

And employers almost always contest willful violations, even when they’re easily able to pay the penalty. Willful violations carry a heavy stigma for employers who always insist after workers are killed that “the safety of our employees is a top priority.” Some states don’t allow companies that have received willful OSHA violations to receive profitable government contracts.

Building General Duty Clause cases and defending OSHA citations (especially willful violations)  before administrative law judges and the Occupational Safety and Health Review Commission (OSHA’s high court) takes time and resources from an agency that is short of both.

Building General Duty Clause cases and defending OSHA citations (especially willful violations) before administrative law judges and the Occupational Safety and Health Review Commission (OSHA’s high court) takes time and resources from an agency that is short of both. OSHA’s budget is tiny, and the Labor Departments small staff of lawyers (or Solicitors) has to defend complicated cases in court.

DOL solicitors must make difficult decisions about which General Duty Clause cases and willful violations they will be able to successfully defend through the legal process and where it makes the most sense to put its resources. OSHRC has ruled against OSHA in some important heat-related General Duty Clause cases, either because the agency had allegedly not established that a heat hazard was present, or that OSHA’s recommended abatement measures were impractical, too expense, or were already partially implemented. Losses at OSHRC understandably make the agency’s lawyers hesitant to use its General Duty Clause as much as necessary. Adding a willful violation on top of that makes the case even more problematic.

Another problem is that OSHA must issue citations within 6 months of a violation. In some more complicated cases, OSHA may not have all the information it needs, or additional information is only revealed after the citation is issued.  I recall many, many conversations with OSHA’s enforcement staff and DOL solicitors about whether or not it made sense to issue willful violations.  And I recall several very painful times when the solicitors later decided to drop willful violations before they came to court because new information had weakened OSHA’s case.

Of course, even if OSHA had issued a willful violation in this case, how much impact would a $156,250 penalty have on the United States Postal Service, which had a $78.2 billion operating budget in fiscal year 2023?

Workers Act

The good news is that despite OSHA’s inability to issue a standard or effective citations, workers are acting:

The Coalition of Immokalee Workers (CIW), which advocates for farm workers in Florida and beyond, isn’t waiting on the federal government. In 2011, the group launched the Fair Food Program, which sets stronger labor standards, including heat standards, on farms. So far more than 20 crop growers, along with Burger King, McDonald’s, Whole Foods, Trader Joe’s, and other large food companies, have signed on.

Gerardo Reyes Chavez, an organizer with CIW and a former farmworker himself, says the difference between conditions on farms signed up with the program and those that aren’t are like night and day. “Before, you didn’t have any way to protect yourself, you were basically down to your luck. But the way I see it, human rights shouldn’t depend on luck.”

Antonia Catalan, a member of the Farmworker Association of Florida Homestead Office, speaks during a press conference and vigil in Homestead, Florida, days after the death of farmworker Efrain Lopez Garcia, 30, from heat complications.

Other unions — including the United Steelworkers, the Teamsters, the SEIU, the ROC United (which advocates for restaurant workers), National Nurses United, and more — are taking up regulations directly with major employers: Recently, UPS drivers unionized with the Teamsters won a contract that, among other changes, requires new company vehicles to have air conditioning. Many existing delivery cars will also be retrofitted with AC, fans, and vents.

In a Perfect World

In a perfect world, OSHA would issue penalties that would actually strike fear into the hearts of employers large and small, penalties that would deter employers from even considering cutting corners on safety.  A $15,625 penalty might have a significant impact on a very small company, and a penalty ten times that size might keep the owners of a medium size company awake at night. But OSHA doesn’t have in its arsenal the power to significantly impact a very large company like the United States Postal Service.

OSHA sometimes has the ability to cobble together numerous violations to get to a pretty hefty fine. For example, in mid December, OSHA proposed $1.4 million in penalties for Florence Hardwoods after the death of a 16-year-old worker became trapped in a stick stacker machine as he tried to unjam it.

The agency cited the company for eight willful, six repeat, 29 serious and four other-than-serious violations of federal safety and health regulations. OSHA categorized five of the willful citations as egregious – the most serious violations the agency issues. The agency has proposed nearly and placed the company in the agency’s Severe Violator Enforcement Program.

That citation probably had an impact on the company. But those citations are rare. The average penalty for a serious violation is only around $4,000.

In a perfect world, OSHA would be able to issue a heat standard in a year or two, instead of several years or decades. A heat standard would clarify what constitutes a hazard and what employers are required to do to reduce or eliminate the hazards. An OSHA heat standard would mean that the agency would not have to depend on the legally burdensome General Duty Clause.

In a perfect world, the law would be changed to enable OSHA to tailor its penalties to a company’s size: smaller penalties for small or medium size companies and huge penalties for huge companies.

In a perfect world, OSHA would have the power to pursue criminal violations that would put deserving employers in jail for particularly egregious violations that kill or seriously injure a worker.

Right now, the Occupational Safety and Health Act allows OSHA to pursue criminal penalties only when a worker’s death is associated with a willful violation. And even then it’s only a misdemeanor, making it unlikely that the Department of Justice (which handles OSHA’s criminal prosecutions) would want to put resources into pursuing a criminal case.

In a perfect world, OSHA wouldn’t have to wait until a worker is killed to jail an employer who knowingly or carelessly or repeatedly violates the law and puts workers in danger.

Right now, OSHA has to go to court in order to stop work in the case of an imminent danger. In a perfect world, OSHA would be able to shut down an operation immediately when inspectors determine that there’s an imminent danger.  And in the most egregious cases where an employer repeatedly ignores or defies the law, OSHA should be able to forbid the owners from operating a business.

Donald Trump may be on the verge of losing his right to operate a business in the state of New York for lying about the worth of his properties in his financial statements.  But if an employer knowingly and willfully kills or maims a worker (or many workers), that employer is unlikely to see more than a relatively insignificant fine and an infinitesimally tiny chance of winding up in jail for a short period.

Seems like we don’t have our priorities straight.

In a hearing last year, Illinois Republican Mary Miller accused OSHA Assistant Secretary Doug Parker of using his “quest for power” to issue a heat standard that would destroy America’s agriculture industry and terrorize farmers just “because it’s hot outside.”

In a perfect world we would have laws that made it easier to organize unions, and unions with strong contracts that would enable them to demand safe working conditions and the ability to shut down the job when hazardous conditions threaten workers’ lives.

Meanwhile, Republicans in Congress are outraged, OUTRAGED that ungrateful workers would dare insist on their right to work in a safe workplace and come home alive and healthy at the end of the day, or that OSHA   that OSHA even exists or has the authority to set standards and enforce the law.  In a hearing last year, Illinois Republican Mary Miller accused OSHA Assistant Secretary Doug Parker of using his “quest for power” to issue a heat standard that would destroy America’s agriculture industry and terrorize farmers just “because it’s hot outside.”

We clearly don’t live in a perfect world. But setting the “perfect” as a goal gives workers, worker advocates, unions and legislators a goal to strive toward.  And by strive, I mean organize — to form unions, to win strong contract language, and to elect pro-labor progressive legislators who will vote to modernize OSHA’s antiquated law, significantly increase OSHA’s budget and strengthen the agency’s penalties.

You know what to do.

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