According to the Bureau of Labor Statistics, heat stress killed 815 workers and seriously injured more than 70,000 workers from 1992 through 2017. This year, record-setting heat waves across the Pacific Northwest have been linked to hundreds of deaths and hospital visits for heat-related illnesses. The August 9, 2021, publication of the Intergovernmental Panel on Climate Change (IPCC) Report, Climate Change 2021: the Physical Science Basis, indicates that such heat waves, which have become more frequent and more intense since the 1950s, may be the new normal. The report predicts an increasing chance of compound extreme events, such as “concurrent heatwaves and droughts” and “compound fire weather conditions,” into the future.
In light of these concerns, calls for the Occupational Safety and Health Administration (OSHA) to issue a permanent standard to protect workers from heat illnesses have been renewed, and pressure from Congress for the agency to act is only likely to grow.
Currently, OSHA relies on the General Duty Clause (GDC) to protect workers from heat-related hazards that are likely to cause death or serious bodily harm. However, the 2019 Occupational Safety and Health Review Commission’s decision in Secretary of Labor v. A.H. Sturgill Roofing, Inc., has made it more difficult to protect workers from heat stress under the GDC, according to OSHA.*
Outside of federal OSHA, many U.S. states run their own OSHA-approved state plans. Of those, only California, Minnesota and Washington have issued heat protections to date. On July 1, Oregon OSHA, in response to the extreme heat waves and fires the state experienced earlier this summer, adopted an emergency rule to increase protections for workers against the hazards of high and extreme heat.
Despite the risk of heat and the increasing awareness of its risks to a wider body of the U.S. population, a Politico and E&E News investigation revealed that work on a standard has stopped and started numerous times under different administrations, as “differences in the temperature and humidity levels at which individuals and even regions of the country experience illnesses” and “disagreement about how best to measure heat” have left policymakers inside OSHA facing a complex task, given the potentially broad scope of regulatory efforts needed to write a standard and limited resources at the agency.
Calls for OSHA to act
That said, OSHA’s federal partner, the National Institute for Occupational Safety and Health (NIOSH), which is housed under the U.S. Centers for Disease Control and Prevention (CDC), has evaluated the scientific data on heat stress and issued a document entitled “Criteria for a Recommended Standard: Occupational Exposure to Hot Environments.” The document, which was initially published in 1972 and subsequently updated in 1986 and 2016, sets forth a recommended standard for OSHA to protect workers from the potential safety and health hazards associated with hot environments.
NIOSH addresses issues such as the proper application of engineering and work-practice controls, worker training and acclimatization, measurements and assessment of heat stress, medical monitoring and proper use of heat-
protective clothing and personal protective equipment (PPE). Most important for employers who may be wondering about the scope of any future heat standard, the recommendations describe “exposure limits that are safe for various periods of employment,” such as “the exposures at which no worker will suffer diminished health, functional capacity or life expectancy as a result of his or her work experience.”
In addition to the NIOSH recommendations, OSHA has received several petitions for a heat-stress standard from numerous organizations. OSHA denied the first petition in 2012 during the Obama administration, but has not granted or denied two petitions from 2018 and 2019. Those petitions cited evidence from NIOSH suggesting that 260,000 workers are at risk of heat-related illnesses and death.
On August 3, 2021, more than a dozen Senate Democrats wrote a letter to Labor Secretary Marty Walsh with renewed calls for OSHA to “quickly develop and adopt a federal heat standard to protect workers.” Citing the “danger of increasing heat waves and rising temperatures due to climate change,” the letter calls for OSHA to work on a permanent standard modeled after federal legislation S.1068, the Asunción Valdivia Heat Illness and Fatalities Prevention Act introduced earlier in the year. S.1068, named in honor of Asunción Valdivia, a 53-year-old California farmworker who died in 2004 of heat stroke, directs OSHA to promulgate a national standard within two years for addressing exposure to excessive heat in both outdoor and indoor settings.
The letter echoes the concerns from a similar letter written by House Democrats, which states they would like to see a standard requiring employers to provide employees with “adequate hydration; rest breaks; areas for rest breaks that are shaded (in the case of outdoor work) or air-conditioned (in the case of indoor work); medical services and training to address signs and symptoms of heat-related illness; and a plan for acclimatization to high-heat work conditions.” With Congressional calls increasing, OSHA has indicated plans to begin the rulemaking process.
According to President Biden’s regulatory agenda, OSHA plans to issue a Request For Information (RFI) in October to explore the potential for rulemaking on heat-illness prevention. The agenda indicates that OSHA will likely seek comment on “a number of technical issues and considerations with regulating this hazard,” such as heat-stress thresholds, heat-acclimatization planning, exposure monitoring and medical monitoring.
In addition to the RFI, OSHA intends to engage a National Advisory Committee on Occupational Safety and Health (NACOSH) work group on heat-illness prevention in both indoor and outdoor work settings. The work group will consist of two to three NACOSH members and approximately 10 members from other stakeholder groups (e.g., trade associations, labor, management). This subgroup will convene for about a year to address issues such as defining “hazardous heat.” After it wraps up, the group will make recommendations to NACOSH, which will then make recommendations to OSHA as to what a standard should cover.
While a fully developed standard is likely years away, climatic events combined with legislative pressure are likely to add urgency to OSHA’s quest to regulate heat exposure in the workplace.
* In Secretary of Labor v. A.H. Sturgill Roofing, Inc., OSHRC dismissed the case against a roofing company that was alleged to have violated OSH Act’s general duty clause by not better protecting a worker who died on the job from heat exposure. The case turned largely on the facts – it was 85 degrees and not particularly high humidity, the worker’s death was related to his age (60) and pre-existing medical conditions and federal discrimination laws prevent companies from making assumptions or inquiries about either. The company had asked the worker if he could do the job and, on that particular day, if he was OK.
Basil Thomson is a senior associate with Ulman Public Policy, TCIA’s Washington, D.C.-based advocacy and lobbying partner.
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