According to the Bureau of Labor Statistics, between 2011 and 2021, there were 436 work-related deaths attributed to environmental heat exposure. To combat heat related deaths in employment, in 2021, Occupational Safety and Health Administration (“OSHA”) published an advanced notice of proposed rulemaking for Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings to gather information on several topics including occupational illnesses and injuries due to hazardous heat, worker training and engagement, and economic impacts. After the comment period ended, OSHA received over nine hundred unique comments and will consider these comments while developing the final rule. OSHA’s rulemaking process can take several years to complete, so it will likely be some time before a final rule is published.
While OSHA works to develop a final rule, several members of Congress, state legislatures, and state administrative agencies have recently proposed legislation and adopted regulations to combat heat related work injuries and illnesses.
Federal Proposals
On July 26, 2023, Representative Judy Chu of California, along with fifty-seven Democratic and one Republican co-sponsors, introduced H.R. 4897 – Asuncion Valdivia Heat Illness, Injury, and Fatality Prevention Act of 2023 in the U.S. House of Representatives. The bill has not yet been considered on the floor of the House of Representatives. A version of this bill has been introduced in the House of Representatives or the Senate every year since 2019 and each bill has failed to pass through the chambers. The provisions in the earlier bills are similar to the bills introduced this year.
If the bill were to be enacted, the Secretary of Labor (“Secretary”) would be required to adopt an interim final rule within one year, creating a standard for employers to protect workers from heat related injuries. The standard must establish the “maximum protective program of measures an employer shall implement to regulate employees’ exposure to heat stress and prevent heat-related illness and injury that attains the highest degree of health and safety protection to the extent feasible.” To develop protective programs, the Secretary may group employers into categories by industry, occupational classification, or any other reasonable classification.
The bill would also allow the Secretary to require employers to utilize or implement engineering controls, administrative controls, personal protective equipment, health related protocols, training requirements, planning requirements, and/or standard health and safety measures. Employers must compensate employees at their regular wage for rest breaks, time spent removing protective equipment, and training.
H.R. 4897 has a companion bill in the U.S. Senate, S. 2501. Companion bills are bills introduced in the other chamber with the same or similar language. S. 2501 was introduced on July 26, 2023, by Senator Sherrod Brown of Ohio, along with eighteen Democratic and one Independent co-sponsors. The bill has not yet been considered on the Senate floor.
State Proposals
OSHA is responsible for creating and enforcing working condition standards for most private sector employers and their workers, including agricultural employers and workers. The Occupational Safety and Health Act (“OSH Act”) does not cover self-employed workers, immediate family members of farm employees and workers whose hazards are regulated by another federal agency. Under the OSH Act, states may develop and administer their own occupational safety and health standards as long as those standards meet or exceed the standards that OSHA has developed. Prior to developing a state plan, the state must pass legislation approved by OSHA and designate a state administrative agency to administer the plan, which assures OSHA that the necessary structural framework is in place to administer a program. The state should then notify OSHA of its intent to pursue initial approval of a state plan and submit a draft plan to OSHA. The regional OSHA office will conduct the initial review of the plan and then send the plan to OSHA’s Directorate of Cooperative and State Programs to review. Once both offices have given their initial approval, the state may begin to adopt and enforce workplace safety and health standards. During this period after initial approval but before final approval, OSHA may also exercise enforcement authority. Finally, once final approval is given by OSHA, OSHA will relinquish their concurrent enforcement authority and the state will solely administer their program. The state plans can cover either private and state/local employers or only state/local employers. There are twenty-two states and one territory with approved plans for both private and state/local government employers. There are six states and one territory with approved plans for only state/local government employers.
States can also adopt standards for hazards not covered by OSHA, like heat-related hazards. Currently, there are four states that have adopted standards related to heat exposure – California, Minnesota, Washington, and Oregon. The standards adopted by California, Minnesota, and Washington were discussed in a prior National Agricultural Law Center blog post. Oregon’s standard will be discussed below. Further discussion will include 2023 legislative proposals in Arizona, Florida, Nevada, New York, and Texas.
Oregon – In 2021, Oregon OSHA adopted emergency heat illness prevention standards that were set to expire in early 2022. A permanent heat illness prevention standard was adopted on May 9, 2022 and became effective on June 15, 2022.
Protections extend to employees performing indoor and outdoor work activities when the heat index is eighty degrees Fahrenheit or greater, with limited exceptions. Employer requirements include providing access to shade and drinking water, implementing high heat practices such as utilizing fans, creating a buddy system, and scheduling work activities during the cooler part of the day, and developing and implementing several written plans. Employers are also responsible for training supervisors and employees on heat illness prevention and maintaining documentation of the training.
Arizona – On February 7, 2023, Representative Andres Cano introduced HB2628 in the Arizona House of Representatives. The bill failed to pass during the legislative session.
The bill would have required the Industrial Commission of Arizona to adopt standards protecting employees who work outside from heat illness. Some of the provisions in the proposed bill applied to all employers with employees working outside and other provisions only applied to specified industries, such as agriculture and transportation of agricultural products. All employers would have been required to provide drinking water, access to shade or a climate-controlled environment, and rest breaks. Employers in the specified industries would have been required to implement high heat procedures when the temperature is ninety degrees Fahrenheit or greater. Employers would have been responsible for training supervisors and employees on signs and symptoms of heat illness and procedures while working outside in the heat. The bill would have given the Industrial Commission of Arizona enforcement responsibilities and provided whistleblower protections to employees.
Florida – On February 16, 2023, Representative Mike Gottlieb introduced HB903 in the Florida House of Representatives and on February 10, 2023, Senator Ana Rodriguez introduced S706 in the Florida Senate, which are similar bills related to heat illness prevention. Both bills failed to pass during the legislative session.
These bills would have required employers in industries with employees regularly working outside to implement an outdoor heat exposure safety program approved by the FL Department of Agriculture and Consumer Services and FL Department of Health. Both bills would have imposed requirements on employers regarding providing rest breaks, drinking water, and access to shade, as well as annual training for supervisors and employees on heat illness.
Nevada – On March 27, 2023, the Nevada Senate Committee on Government Affairs introduced SB427 in the Nevada Senate. This bill failed to pass during the legislative session.
The bill would have required employers to establish a written safety program to mitigate heat illness on days where the temperature is expected to be 105 degrees Fahrenheit or greater. The program would have needed to include provisions regarding the availability of water, access to shade, and how to determine if an employee is showing signs of heat illness. The program would have also needed to include provisions to mitigate exposure to poor air quality and a training program for employees on identifying the signs of heat illness and working during periods of poor air quality. For businesses with more than twenty-five employees, a safety committee including employee representatives would have been required. In most circumstances, these requirements would not have applied to businesses with ten or less employees.
New York – On January 13, 2023, Senator Jessica Ramos introduced S1604C – Temperature Extreme Mitigation Program (TEMP) Act in the New York State Senate. S1604C has a companion bill in the New York State Assembly, A3321C. A3321C was introduced on February 2, 2023, by Assembly Member Latoya Joyner. Both bills failed to pass during the legislative session.
The bills would have amended New York labor law by establishing heat protection standards for employers. The bills applied broadly, including outdoor worksites for agriculture, construction, and landscaping as well as indoor worksites for commercial shipping, food service and warehousing.
The bills included employer requirements regarding access to hydration, shade, and personal protective equipment as well as medical monitoring and preventative breaks. Protections would have extended to both full and part time workers, independent contractors, day laborers, farmworkers, and other temporary and seasonal workers regardless of United States citizenship status. However, it would not apply to employees working outside for short periods (no more than fifteen minutes in a sixty-minute period). The bills would have also required employers to maintain and submit additional records to the NY Department of Labor, while giving that department more responsibilities in terms of both training and enforcement.
Texas – On March 9, 2023, Representative Maria Flores introduced HB4673 in the Texas House of Representatives. The bill failed to pass during the regular session of the legislature. Representative Flores reintroduced the bill during the 2023 special session, where it failed to pass again. The bill would have required the Texas Workforce Commission to create an advisory board tasked with creating standards for heat illness prevention. Provisions in the standards would have included access to drinking water, shade, and rest breaks, as well as emergency response and training procedures.
Looking Forward
There have been record heatwaves throughout the United States in the last few months. According to the National Oceanic and Atmospheric Administration, July 2023 was the hottest month on record globally. In response to record temperatures, the Biden-Harris Administration announced several measures to protect individuals and communities from extreme heat and asked the Department of Labor to issue the first-ever heat hazard alert. The heat hazard alert discusses employer responsibilities regarding protecting workers against the heat. In 2023, the Department of Labor also announced it would be increasing enforcement of heat safety violations and increasing inspections in agriculture and construction. When many state legislatures reconvene in 2024 and 2025, there will likely be additional proposals for heat related standards after the record temperatures in summer 2023.
To read the OSHA advanced notice of proposed rulemaking, click here.
To view the Department of Labor heat hazard alert, click here.
For OSHA guidance on working in outdoor and indoor heat environments, click here.
For Department of Labor tips on heat safety in agriculture, click here.
To read the previous NALC article discussing heat standards, click here.
For more NALC resources on labor, click here.