Muskat Devine partner Corey Devine has been quoted in a Law360 Employment Authority article on what employers should consider as they work to protect employees in extreme heat.
The article, “Scorching Heat Brings Concerns Over Bias, Not Just Safety,” highlights why employers should take the issue of heat seriously and, in addition to worker safety, must remember that they may have obligations not to discriminate against employees who might be vulnerable to higher temperatures.
The article presents three questions employers should ask themselves about anti-discrimination law as they create heat safety plans. They include:
- If the Job Is Outside, Is the Worker “Qualified”?
Mr. Devine told Law360 that a critical inquiry for employers considering obligations under the Americans with Disabilities Act (ADA) is whether working in extreme temperatures is an essential function of the job in issue.
“The real fight begins and ends in many of these cases over whether working in the heat is an essential function of the job,” he said. “A lot of the cases turn on job descriptions.”
Mr. Devine cited a 2016 decision by the U.S. Court of Appeals for the 11th Circuit in Perry v. The City of Avon Park, Florida. In that case, a panel agreed that a city maintenance technician and breast cancer survivor was not qualified for her job because most of her work took place outside and her doctor said she could not work more than four hours a day in temperatures above 80 degrees.
“These cases are messy because they’re pled also as failure to accommodate, and so the cases then go through the analysis of whether there could have been an accommodation or not,” Mr. Devine said. “But as a strictly black-letter legal issue, a person who’s not qualified is not entitled to any accommodation in the job.”
- Have You Considered Unique Obligations Toward Pregnant Workers?
According to the article, the Centers for Disease Control says pregnant people are at higher risk for heat-related illnesses. Under the Pregnant Workers Fairness Act (PWFA), which took effect in 2023, employers must offer job-related adjustments to workers who are pregnant or have pregnancy-related conditions.
Mr. Devine told Law360 that the PWFA requires more from employers than does the ADA and that the qualification issue “evaporates” under the PWFA.
He said under the PWFA, employers might need to temporarily remove an essential job function as an accommodation for a pregnant worker, since pregnancy is temporary. But removal of an essential function may not be required by the PFWA when such removal results in an undue burden.
“So, I do think there are some jobs where an employer would look at removing an essential function, like working outside, and say, ‘There is nothing left for this employee to do,'” Mr. Devine said.
- Does Everyone Understand the Heat Safety Procedures?
A proposed rule from the U.S. Department of Labor’s Occupational Safety and Health Administration, announced July 2, requires employers to develop heat safety plans before they’re needed.
It also calls on employers to post the plan in a place visible to workers. It is unclear if the proposed rule will become a final rule, so employers should keep an eye on developments as the rule makes it way through the rulemaking process.
To read the full article, click here.