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Over the last three months, which have been declared the world’s hottest summer on record, outdoor workers across the US have endured dangerously hot conditions on the job. They’ve cut grass in 112°F heat in California’s Coachella Valley, handled baggage on the hot tarmac of airports across the country, harvested fruit, delivered packages, and performed countless other functions that go largely unnoticed by our society.
Unlike past Danger Seasons, however, this one included glimmer of hope: After decades of stalling, the Occupational Safety and Health Administration (OSHA) has published a proposed federal heat-protection standard that would require employers to protect their workers from extreme heat (haga clic aquí para leer en español). And truthfully? The proposed standard isn’t perfect, but it’s damn solid. The public comment period on the proposed standard runs through December 30th.
Here’s what we at UCS see as critical for making the final version as strong as possible—and how you, too, can weigh in.
Wait, we still don’t have a federal standard protecting workers from heat?
First off, a quick recap of the current situation.
Across the US, there are only five states that have some level of workplace heat protections on the books. California and Oregon’s standards cover both indoor and outdoor workers; Washington’s standards cover only outdoor workers; Colorado’s protect only agricultural workers; and Minnesota’s cover only indoor workers. Maryland is close to finalizing a standard and would be the first East Coast state to do so.
At the local level, a few localities—including Phoenix, Tucson, and Pima County, Arizona—have passed ordinances protecting city or county workers. But other localities, such as Austin, TX, and Miami-Dade County, FL—have been barred by their state governments from enacting local protections.
What that means is that in most of the country, even in the hottest places, workers are at the mercy of their employers when it comes to working in extreme heat.
But help is on the way: a federal heat-protection standard is now in sight. It’s critical that the next steps in the rulemaking process are as expeditious as possible and we get a strong final rule soon.
OSHA has issued a proposed heat-protection standard
In the fall of 2021, OSHA announced it was initiating the rulemaking process to create a workplace heat-protection standard. After obtaining thousands of comments through two rounds of public comment and getting recommendations from a Small Business Advocacy Review Panel, on August 30th, OSHA formally issued a proposed heat-protection rule—officially called “Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings.” The proposal is now open for public comment through December 30, 2024.
For more background on the rulemaking process, click here.
The good stuff in this proposed rule includes:
- The core health-protective measures workers need when it’s hot: water, shade, and rest;
- Provisions that require rest breaks to be paid—a real win that will ensure workers don’t have to choose between their health and their livelihoods. UCS research shows that outdoor workers could collectively be losing billions of dollars in earnings due to worsening extreme heat by midcentury if provisions like this are not in place;
- The inclusion of an initial heat trigger at 80°F, above which certain protective measures go into place, and a high heat trigger at 90°F, when those measures get ramped up;
- Requirements that managers involve non-managerial employees in identifying hot spots in workplaces and in developing plans to monitor employees when it’s hot.
OSHA has also provided extensive, science-based background materials supporting the proposed rule.
But there are also some weak points that can be improved with pressure through public comments. For example:
- Exempting employers with fewer than 10 employees from putting heat injury and illness protection plans in writing. There are different means of assessing how many employers and employees this would exempt, but it’s safe to say it’s a lot. Pew research shows that half of small businesses in the US have fewer than five employees, for example. And the Small Business & Entrepreneurship Council has used Census data to estimate that nearly 80% of employer firms have fewer than ten employees.
- Weak and limited recordkeeping requirements. Under the proposed rule, employers would not be required to keep records of heat illnesses and injuries experienced in their workplaces or how those cases were resolved. Employers would only be required to keep six months’ worth of records of workplace temperatures.
- A fixed length for rest breaks—a minimum of 15 minutes every two hours—rather than progressively longer breaks as the temperature rises, as was suggested by the Centers for Disease Control and Prevention (CDC) in their 2016 recommendations.
- Shorter-than-needed acclimatization periods. The proposed rule requires employers to implement a gradual period of acclimatization for new workers that is, at a minimum, four days long. Science suggests this is much too short. OSHA’s own data has shown that most workplace heat-related fatalities occur during the first week on the job. And the CDC notes that acclimatization can take longer than one week. That said, a longer acclimatization period means less time hourly workers are working, so this may be a tough sell.
A lesson from California and Oregon: A heat protection standard alone isn’t enough to protect workers
If the proposed federal standard went into place as-is, it would be a huge step forward in the fight for worker safety in the face of a warming climate. But evidence from states that have had standards in place for years suggests that such rules, on their own, aren’t enough.
In California, there’s evidence that rates of heat-related injuries in the workplace have declined—but not to zero—since the state’s heat-protection standards went into effect in 2006. But over the last several years, there’s been a drop in workplace inspections and enforcement of that law. And without inspections and enforcement, it’s all too easy for employers to fly under the radar.
Recognizing that climate change threatens to increase instances of heat-related injury, illness, and death, California lawmakers passed a bill, SB1299, that is now waiting for Governor Newsom to sign that would create a revolving workers’ compensation fund to compensate workers who incurred medical costs resulting from workplace heat exposure (or, grimly, their families who are owed death benefits).
At the same time, workers in California are organizing and fighting for additional protections, including earning hazard pay for working through extreme heat and smoke; being paid for full workdays even if heat or smoke cause employers to send workers home early; and, just generally, earning higher wages.
Similarly, in Oregon, despite statewide heat-protection standards, workers are still having to choose between health and paycheck because they don’t want to lose income and they fear employer retaliation if they take time off. For the last several years, a stopgap program in the state has compensated farmworkers who lost wages due to heat or smoke. But the fund is no longer accepting new applications and, earlier this year, the state legislature decided not to approve additional funding.
The Asunción Valdivia Heat Illness, Injury and Fatality Prevention Act is an important complement to the OSHA standard. Among other provisions, this bill underscores OSHA’s responsibility and authority to develop and enforce worker heat-health protections and puts a timeline in place for finalization of a rule. Click here to tell your members of Congress to support and pass this important bill.
Tell OSHA to act quickly to enact a strong heat standard
If you’ve never submitted a public comment to a federal agency before, there’s no better time than the present!
OSHA is accepting comments on its proposed heat-protection standard through December 30, 2024, and you, too, can weigh in. Click here and fill out the form to contribute your perspective. To do so you could draw the strengths and weaknesses I list above if you’d like. You could also draw from fellow advocate Juanita Constible’s excellent blog post about the proposed rule. Or you could read the proposed rule itself and decide how you’d like respond.
Whatever route you choose, please consider submitting a comment. The health and wellbeing of the roughly 30 million outdoor workers in the U.S. depends on this standard being as strong as possible, and it’s up to all of us to ensure it lives up to its potential.
