Lightning Safety and OSHA's General Duty Clause

The U.S. Supreme Court has held that Section 5(a)(1) of the OSH Act, the “General Duty Clause,” was intended to place on employers a mandatory obligation — independent of the specific health and safety standards promulgated by the Secretary of Labor — in order to reduce the number of occupational illnesses and serious injuries.

Although the General Duty Clause is not truly, as some believe, a catch-all provision requiring employers to provide protection against every imaginable danger in the workplace, nonetheless it does expand, well beyond the list of hazards having their own particular standards, the range of such risks that need to be addressed by your company’s safety program.

To prove a violation of the General Duty Clause, the Secretary must prove that (1) an activity or condition in the employer’s workplace presented a hazard to an employee; (2) either the employer, or the industry, recognizes the condition or activity as a hazard; (3) the hazard actually caused, or was likely to cause, death or serious physical harm; and (4) a feasible means existed, to eliminate or materially reduce the hazard.

One hazard for which there is no specific OSHA standard, but which lies within the coverage of the General Duty Clause, is the danger of employees being struck by lightning.  In a typical year, approximately 50 to 80 people in the U.S. are struck and killed by lightning.  Hundreds more suffer burns, damage to the nervous system, hearing or vision loss, or other serious and permanent injuries.  While the likelihood of an individual being struck by lightning over a lifetime is only about 1 in 10,000, in most years lightning kills more people than any weather-related cause, except for floods.  Lightning usually kills more Americans than hail, wind, rain and tornadoes combined.

Construction workers, so much of whose work is performed outdoors, have an elevated risk of being struck by lightning.  A recent OSHA decision, Secretary of Labor v. Key Energy Services, LLC, held that an employer in the well-servicing industry in Texas violated the General Duty Clause by permitting its employees to continue to work outdoors during a thunderstorm.  The ALJ in Key Energy rejected the employer’s argument that “being struck by lightning is not a preventable hazard,” and therefore lies outside the scope of the General Duty Clause.  “Preventable” does not occur in the OSH Commission’s current formulation of the first element of proof for a General Duty Clause violation, and the Secretary is not required to show that the proposed abatement would completely eliminate the hazard.

You need to have safety policies, work rules, and sufficient training, to minimize the risk that lightning poses to your employees.

One elementary thing you should do is to have your supervisors check the weather forecast daily before the morning shift begins.  If the report includes a “chance of thunderstorms,” your crews need to be cautioned accordingly, and a plan announced (or repeated) for what workers are to do if a thunderstorm approaches.

Although thunder and lightning can occur even during a snowstorm, thunderstorms are most common during the months between April and October.  If the possibility of a thunderstorm is in the weather forecast, one of your supervisors should be tasked to check the weather report every hour or two.  Virtually all cell phones have “apps” that permit checking the weather forecast in a matter of seconds, and there exist apps specifically designed to allow you to enter your location and receive warnings, if lightning is observed in the area.  Large banks of cumulus clouds, especially if they display grayish or dark undersides, are also an early sign of a thunderstorm.

As you probably are aware, lightning tends to strike higher ground and prominent objects, especially materials that are good conductors of electricity.  If you find yourselves outdoors in a thunderstorm, stay away from trees, flagpoles, lawn mowers, metal fences, golf clubs, ponds, etc.  A lightning bolt is roughly a million times more powerful than household current, and carries up to 100 million volts of electricity.

Remember that although sharp, crackling thunder, following a lightning flash almost instantaneously, indicates that lightning is very near, if a storm is close enough that you can hear even “low, rumbling” thunder, there is danger.  A thirty-second lapse between when you see the lightning, and when you hear the thunder, indicates a distance of roughly eight miles.  However, lightning can travel horizontally for tens of miles, far outside the rain-producing part of the storm, and it is not uncommon that lightning will strike up to ten miles, and out of a clear sky.  Thus, whenever thunder is heard, even in the distance, your employees should proceed to take cover, and any delay should be avoided — especially if workers must cover more than a very short distance to get inside a substantial building.

Advance planning should be done, and employees instructed as to the nearest available substantial building in which they should take cover in the event of a thunderstorm, or an approaching thunderstorm.  By “substantial building,” I mean a fully-enclosed structure, having plumbing and/or a grounded electrical system.  Structures lacking plumbing or electrical fixtures (e.g., picnic or bus shelters, sheds, greenhouses, carports, tents, etc.) are not grounded, and therefore provide no real protection against lightning.

Even within a “substantial” building, employees may not be totally safe.  All windows should be kept closed, until 30 minutes after the last lightning is seen.  Don’t use landline phones, as lightning can travel through phone lines.  Suspend  all work, even indoors, on metal pipes and wiring.  Power tools and machines should be turned off, to protect the equipment from power surges.

The next-best refuge from lightning is a fully-enclosed metal vehicle (car, truck, or piece of construction equipment, provided that it has a totally-enclosed cab).  An open-cab excavator, golf cart, topless, soft-top, or fiberglass vehicle will not serve.  When inside a vehicle during a lightning storm, keep all windows rolled up, put your hands in your lap, and wait out the storm.  You should avoid touching any part of the metal frame, or any wired device within the vehicle (steering wheel, door handles, plugged-in cell phone).  Contrary to widespread belief, the vehicle’s rubber tires do not provide absolute protection.  Don’t park near a tree, or other tall object, that could fall onto your vehicle due to storm conditions.  Be aware, also, of downed power lines that may be touching your car.

Workers need to be trained to take shelter if possible, but also as to what to do if no good shelter is available. If you find yourself outdoors, and cannot get to a grounded building or vehicle, you want to assume a low profile (crouched, on the balls of your feet, like a baseball catcher) with your hands over your ears.  Do not lie flat.  If you can get from higher ground to lower ground, such as a valley or a ditch, you should do so (but watch for flooding!).  If you are with a group of people, you should not be touching one another, or huddled together, but should spread out at least 5 yards apart.  A wooded area, with trees of roughly equal height, is safer than being out in the open;.  You should avoid, however, being close to a tree or a metal structure that is the highest object in its immediate area.

Resist the temptation to put your employees back to work as soon as the rain stops, and the thunder fades to a “low rumble.”  Employees should remain indoors at least thirty minutes after the last flash of lightning.

If anyone on your jobsite is struck by lightning, don’t be afraid to touch them:  they don’t remain electrified.  If the victim is not breathing, administer mouth-to-mouth resuscitation.  If the victim doesn’t have a pulse, CPR should be administered at once, by a person competent to do so.  Have someone summon emergency responders, even if the victim has a pulse and is breathing normally.  While estimates of the survival rate among persons struck by lightning range between about 75% and 90%, long-term, debilitating injuries from lighting may be attenuated, if prompt medical attention is obtained.

If you would like more information regarding this topic please contact Thomas H. Welby at twelby@wbgllp.com or call (914) 428-2100