Tag Archives: heat exposure

Good news, bad news when it comes to heat exposure and workplace law

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Nebraska law can be friendly towards weather-related injury and weather-safety whistleblower claims, but workers should expect extra scrutiny from courts on these types of claims.

Nebraskans started experiencing their first heat wave of the summer this weekend. Most of the state will see temperatures at or near 100 degrees Fahrenheit early next week. Nebraska workers face a mixed bag of news when it comes to state and federal workplace safety laws when it comes to heat.

Good news: Positional risk doctrine and weather-related work injuries in Nebraska.

In Nebraska, a worker who is injured as a result of extreme weather should be able to collect workers’ compensation because the state has adopted the positional-risk test – at least when it comes to tornados. Positional risk means that if you are injured at work because of a general or neutral risk like weather at work, then you can collect workers’ compensation for your injury. Not all states have adopted this rule which makes it harder for those workers to collect workers compensation for heat-related injuries.

Bad news: Heightened causation for heat-related heart attacks in Nebraska

One common heat-related injury is a heart attack. But heart attacks have a more difficult causation standard that typical work injuries in Nebraska. Nebraska typically has what is called contributing factor causation which means that a work injury or working conditions can combine with other personal factors and still be covered by workers’ compensation. But with a heart attack, an employee has to show that work substantially increased the risk of the heart attack. It’s not an impossible standard, to meet but at the very least it can give an insurer/employer the ability to initially deny a heat-related heart attack claim.

Good news: USDOL is pushing a heat standard

In contrast to the Obama administration, the Biden DOL is moving forward with a rule for heat exposure on the job. This is important because OSHA is more likely to sanction employers if they are violating a specific rule rather than the so-called General duty clause.

Bad news: It could take up to 10 years to enact a specific OSHA heat rule

Reporter Mike Elk of Payday Report and former OSHA official turned blogger Jordan Barab have done great writing and reporting about the delays in enacting workplace safety rules through OSHA. In regards to the heat rule, if everything goes right then a heat rule may get enacted sometime in 2027 or 2028. This is likely assuming a second Biden term or that Biden is succeeded by a Democrat in 2025. This isn’t a political blog per se, but those are big assumptions at this point.

Good news/Bad News: Private enforcement via whistleblower laws

However employees who believe that their employer is creating unsafe conditions related to heat can still call OSHA. From my experience, OSHA is more likely to take action if employees are willing to forgo anonymity in their complaint. Forgoing anonymity when making a complaint can also make it easier for an employee to succeed in a retaliation case.

While a general complaint about unsafe working conditions doesn’t always give you a right to sue your employer, employees in certain industries can ask for administrative hearings in retaliation cases. Further, Nebraska has a general whistleblower law that allows employees to sue employers in state court over retaliation.

Again, these cases are stronger if an employee is willing to call OSHA and forgo anonymity. State and federal judges have enacted many hurdles in retaliation cases that make it harder for employees to win these claims. I think part of the reason why judges have thrown up hurdles in retaliation cases is because most employees are reluctant to report misconduct to a government agency and want anonymity when they do. Bluntly, it seems like courts are adopting the “I’m the m-fer who called OSHA!” test for what constitutes a protected activity in a retaliation case.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Will the Biden administration create a federal heat standard?

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Nebraska and much of the western United States have been struck with sweltering temperatures this week. The hot weather serves to remind me that there is still no federal standard for workplace heat exposure.

NBC ran a story earlier this week that updated and explained efforts to create a national standard for heat exposure in the workplace. The Department of Labor, through the Occupational Safety and Health Administration, can implement such a rule. Some states, like California, have implemented rules about heat exposure in the workplace. The California rule seems like it codifies common sense about water breaks and shade.

Hopefully our new Labor Secretary, Marty Walsh a former union leader, implements a heat exposure rule. The Obama administration DOL rejected a heat exposure rule in the blazing hot summer of 2012.

Heat exposure and workers compensation

Nebraska does not have a heat exposure rule like California. However Nebraska workers compensation law covers heat-related injuries. At the very least, workers’ compensation provides some baseline level of regulation for employers when it comes to heat. But compensation in workers’ compensation cases is limited and no amount of money can replace the life of a family member. Additionally, some heat-related injuries like heart attacks have tougher causation standard which make it more difficult for workers or their dependent family members from recovering benefits.

The advantage of an OSHA rule for heat exposure is that means that OSHA can sanction and shame employers who violate the rule.

Workplace heat exposure and climate change

Climate change is expected to raise summer temperatures in Lincoln, Nebraska by 5.5 degrees Fahrenheit by 2050 and by 11 degrees by 2100. Heat will be an even larger occupational risk than it is today. Chicago experienced a heat wave in 1995 that killed 749 people. This little remembered natural disaster could be a precursor for more heat-related health problems and deaths in the future. One argument against a national heat standard is that it doesn’t account for “regional variations” in climate. But if climate scientists are correct, most if not all, areas of the United States will be at real risk for heat-related injuries and illnesses in the future. OSHA and Congress should take action to protect workers.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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Legislation seeks to prevent heat-related deaths on the job

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Reps. Raul Grivjala (D.-Ariz.) and Judy Chu (D.-Cal) introduced federal legislation that would mandate OSHA  standards for workers exposed to high heat as well as mandating paid cooling breaks, access to water and training to recognize heat stroke.

The Asuncion Valdiva Heat Illness and Fatality Prevention Act is named after a California worker who died after picking grapes for ten hours in 105-degree heat and modeled after a California law passed by Rep. Chu when she served in the California legislature.

Fortunately, deaths and injuries from heat exposure are covered by workers’ compensation in Nebraska. This can even be true if heat causes a heart attack where there is a heightened standard for causation. But compensation in workers’ compensation cases is limited and no amount of money can replace the life of a family member.

Nebraska recently experienced nasty heat wave that is still effecting most of the country. While agricultural production in Nebraska is more capital-intensive than in states like Arizona and California, many workers are still vulnerable to heat. The first to come to my mind would be residential construction workers building new houses in shade less subdivisions.

Climate change is expected to raise average summer temperatures in Lincoln, Nebraska by 5.5 degrees Fahrenheit by 2050 and by 11 degrees by 2100. Heat will be an even larger occupational risk than it is today.

Chicago experienced a heat wave in 1995 that killed 749 people. This little remembered natural disaster could be a precursor for more heat-related health problems and deaths in the future and the need to take precautions. The Chicago heat wave of 1995 shows how northern and cold weather areas could be particularly vulnerable to risks from climate-change induced heat waves. Federal legislation about heat standards on the job would be one precaution.

I would urge everyone to contact their elected representatives to support the Asucnion Valdiva Act. Nebraska’ legislators lo like to tout the value of manual labor as a way for young people to build character. But building character shouldn’t mean sacrifcing safety. I also believe that Nebraska should adopt a state law version of the Asuncion Valdiva act.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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