Last month, the Supreme Court dealt a serious blow to the efforts of the United States to address climate change.  That was bad news for the earth and everyone living on it, but those hit the hardest by the Court’s effort to weaken the regulatory state will be workers — especially outdoor workers — who are attempting — and sometimes failing to survive rising temperatures.

Heat is Killing Workers

On June 25, one day after celebrating his 24th birthday, UPS driver Esteban Chavez collapsed on a driveway in Pasadena, California while delivering package and later died. The final coroner’s report is not yet in, but Esteban’s aunt, Gloria Chavez says his family believes he may have died from heatstroke, pointing out that delivery drivers have little to no ventilation in their trucks.  On the day Chavez suddenly collapsed and died, temperatures in Pasadena were in the upper 90s.

The risk to UPS drivers is nothing new. According to a 2019 NBC News report:

UPS does not air-condition most of those familiar brown trucks or many of its loading facilities. On a long hot day of deliveries, the temperature in the cargo area of a truck can soar to 140 degrees and higher. UPS drivers have recorded temperatures as high as 152 degrees, according to photos and video provided to NBC News.

Between the heat and the surge in shipping, drivers who spoke to NBC News said conditions are getting worse.

At least 107 UPS workers in 23 states have been hospitalized for heat illnesses since 2015, according to state and federal worker-safety data and hundreds of pages of documents obtained by NBC News through freedom-of-information requests…. Yet, UPS has no plans to air-condition its delivery fleet, and drivers said they feel uncomfortable complaining at a company that offers one of the nation’s best paying jobs for workers without college degrees.

Anyone who works outside or in hot environments like unventilated trucks and warehouses is at risk of deadly heat-related diseases. Farmworkers are considered the most at risk. An analysis of data from the Bureau of Labor statistics found that farmworkers are 35 times more likely to dies from a heat-related illness than workers in general.

Last June, as a record-breaking heatwave baked Oregon’s Willamette Valley, Sebastian Francisco Perez was moving irrigation lines at a large plant nursery in 104 degree Fahrenheit heat. When he didn’t appear at the end of his shift, his co-workers went looking for him, and found him collapsed between rows of trees. Investigators from the Oregon Occupational Safety and Health Division determined that Perez died of heat-related hyperthermia and dehydration.

They also found that Perez had not been provided with basic information about how to protect himself from the heat. It wasn’t the farm’s first brush with regulators; it had previously been cited for failing to provide water and toilets to its workers.

Perez was 39 years old. Despite the company’s previous history of failing to address dangerous heat exposure to its workers, an Ernst Nursery & Farms appealed the $4200 Oregon OSHA fine and a company official blamed Perez for his own death, claiming that employees should “be accountable for how they push their bodies.”

Most experts recognize that heat related illness and death are significantly undercounted.  A recent Public Citizen report estimates that environmental heat is likely responsible for 170,000 work-related injuries every year and for 600-to-2,000 worker fatalities, annually.

Earlier this month, Kaylen Gehrke, a 24-year-old archaeological worker with the Shreveport Cultural Resource Analysts died suddenly from a heat-stroke in Louisiana’s Kisatchie National Forest. It was Gehrke’s first day on the job. The National Weather Service reported that it was 98° outside in Natchitoches, with a heat index of more than 107°.

But heat doesn’t hit all at-risk workers equally. Some groups and occupations are more vulnerable for socio-economic and political reasons

Agricultural workers are doubly vulnerable to the hazards of heat. The nature of their jobs means they spend long hours outside in hot weather. But a number of other factors exacerbate this risk. Labor laws in the U.S. prevent most farmworkers from unionizing, so they lack leverage in negotiations with employers. Most farmworkers are either undocumented or in the country on H-2A temporary work visas, which are tied to a single employer —  if workers complain or otherwise cause problems for employers, they risk deportation. Many farmworkers don’t speak English and lack access to affordable healthcare. Workers often aren’t paid an hourly wage but on a piece-rate basis; getting paid by the bucket, bundle or pound can disincentivize workers from taking a break, advocates say. And crew leaders, who are employed by farms to oversee workers, often get paid bonuses based on how much their crews harvest.

In addition, pregnant people are more prone to heat exhaustion and heat stroke, and heat increases the risk of stillbirth and preterm delivery.

Federal OSHA notes that 18 of the last 19 summers were the hottest on record and estimates that

According to the Bureau of Labor Statistics (BLS) Census of Fatal Occupational Injuries, exposure to excessive environmental heat stress has killed 907 U.S. workers from 1992-2019, with an average of 32 fatalities per year during that time period (BLS, September 10, 2021a). In 2019, there were 43 work-related deaths due to environmental heat exposure (BLS, September 1, 2021). A recent analysis of BLS data by National Public Radio and Columbia Journalism Investigations found that the three-year average of heat-related fatalities among U.S. workers has doubled since the early 1990s

But most experts recognize that heat related illness and death are significantly undercounted.  A recent Public Citizen report estimates that environmental heat is likely responsible for 170,000 work-related injuries every year and for 600-to-2,000 worker fatalities, annually. The reasons for underreporting include:

  • Heat related illness often not recognized by physicians and the criteria for defining a heat-related death or illness may vary by state, and among physicians, medical examiners, and coroners. Kidney disease is one example of a heat-related illness that is rarely traced back to work.
  • The effect of heat on a person’s cognitive abilities and judgement can result in significant heat-related occupational injuries that are not reported as heat-related.
  • Employers self-report injuries and illnesses to OSHA and the Bureau of Labor Statistics, and they tend to under-report. In some high-heat industries, like agriculture, employers with 10 or fewer employees are excluded from reporting requirements. In addition, Employees often fear retaliation for reporting or may not realize an illness or injury is heat-related.
  • Heat can have delayed, long-term effects on employees that may not be traced back to working conditions.

What is being done

The risk of exposure to high heat at work is nothing new.  The hazard has likely been known since the human beings began to work the earth. Even though basic government efforts to require employers to implement measures to prevent heat-related illness continue to face fierce industry opposition, it’s likely that our cave men/women ancestors figured out tens of thousands of years ago that providing water, shade and rest kept hunters, gatherers and farmers from dying during periods of high heat. Yet federal OSHA, now past it’s 50th birthday, still does not have a nation-wide standard to protect workers against heat. A major compliance assistance campaign launched in 2010 that emphasized providing water, rest and shade, was helpful, but not adequate. A nationwide, mandatory standard is clearly needed.

Even though government efforts to require employers to implement measures to prevent heat-related illness continue to face fierce industry opposition, it’s likely that our cave men/women ancestors figured out tens of thousands of years ago that providing water, shade and rest kept hunters, gatherers and farmers from dying during periods of high heat.

OSHA has at least launched a process that will, at some point, result in a nation-wide standard. Last October, federal OSHA issued an Advance Notice of Proposed Rulemaking (ANPRM) to begin the process of collecting information and public input on a federal OSHA heat standard.  OSHA noted in its press release that the Heat ANPRM is part of the Administration’s initiative to Protect Workers and Communities from Extreme Heat.  The ANPRM is also part of a comprehensive OSHA initiative to address indoor and outdoor heat hazards.

Unfortunately, the development of a complex OSHA standard can take many years, even decades. OSHA’s silica and beryllium standard took almost 20 year to finalize.  The requirements of the Occupational Safety and Health Act, court decisions over the past 50 years, regulatory Executive Orders, additional laws adding regulatory requirements — and politics — all conspire to slow down OSHA standards. And that’s just in Democratic administrations. Republican administrations generally stop all significant work on OSHA standards, adding 4 or 8 years to an already glacial process.

Some of the 21 states with OSHA state plans are acting much faster. Those states must issue standards that are at least as effective as federal standard, but can also issues standards that are more protective than federal standards, or standards that federal OSHA doesn’t have yet.

Heat Summer California issued an standard to protect outdoor workers in 2005, which was updated in 2015. California farmers are required to provide workers with cool drinking water, shade and rest breaks when temperatures hit 95 degrees F, and to give workers the option to rest at temperatures of 80 degrees F and above. Evidence shows that the California standard has resulted in fewer heat-related workplace injuries since the state adopted its standard. But CalOSHA is not near large enough to effectively monitor the state’s huge agriculture industry. California is also working on an indoor heat standard, which would be especially helpful for the state’s huge number of warehouse workers.

Washington also has a standard, and earlier this year, Oregon OSHA issued the strictest heat standard. When temperatures reach 80 degrees Fahrenheit, and employers must provide cool water, rest breaks and shade. They must also make plans for how to acclimatize workers to heat, prevent heat illness and seek help in case of a heat-related emergency.

Meanwhile, OSHA isn’t standing still.  On September 1, OSHA issued new inspection guidance to “prevent and protect employees from serious heat-related illnesses and deaths while working in hazardous hot indoor or outdoor environments” and is working on a National Emphasis Program. And in April, Vice President Harris joined Secretary of Labor Marty Walsh to announce a new OSHA National Emphasis Program to protect millions of workers from heat illness and injuries.

Instead of just reacting to complaints, illnesses and deaths

OSHA will proactively initiate inspections in over 70 high-risk industries in indoor and outdoor work settings when the National Weather Service has issued a heat warning or advisory for a local area. On days when the heat index is 80 F or higher, OSHA inspectors and compliance assistance specialists will engage in proactive outreach and technical assistance to help stakeholders keep workers safe on the job. Inspectors will look for and address heat hazards during inspections, regardless of whether the industry is targeted in the NEP.

OSHA is sending frequent press releases warning employers to protect their workers. The agency also has a number of factsheets and other information on their website, as does NIOSH, and NIOSH and OSHA have developed a Heat App to help workers and employers plan “outdoor work activities based on how hot it feels throughout the day. Featuring real-time heat index and hourly forecasts, specific to your location, as well as occupational safety and health recommendations from OSHA and NIOSH.”

The AFL-CIO’s Building Trades’ Center for Construction Research and Training for also has a number of publications in English and Spanish.

What’s Next?

There is no shortage of information available for workers and employers about how to protect workers. But as they say, voluntary guidance is great except for those worker who work for employers who refuse to volunteer.  And in fact, industry is already opposing federal OSHA’s standard, using the same old tired claims that employers have used to oppose every standard since OSHA’s creation: we’re already protecting our workers (who are like family), and it will destroy the industry if you require us to protect workers. In other words, “we can’t afford to do what we say we’re already doing.”

Industry is already opposing federal OSHA’s standard, using the same old tired claims that employers have used to oppose every standard since OSHA’s creation: we’re already protecting our workers (who are like family), and it will destroy the industry if you require us to protect workers. In other words, “we can’t afford to do what we say we’re already doing.”

And the Oregon Manufacturers and Commerce, Associated Oregon Loggers Inc. and the Oregon Forest & Industries Council,  groups representing over 1,000 Oregon companies and 50 forestland owners, have sued Oregon OSHA to overturn the state’s heat rule, as well as a new rule that protects workers against smoke from forest fires.  They allege that the standards are unconstitutional because they are too vague to be fairly enforced and  the state’s workplace safety agency overstepped its statutory authority by adopting them.

There is a clear need for strong worker protection requirements that apply in every state.  And as climate change accelerates, those requirements need to come sooner rather than later. Bills have been introduced in Congress that would require OSHA to issue a heat standard within 3 1/2 years. Not great, but better than the decades it often take OSHA to issue a major standard.  Given the configuration of the Senate, as well as the less-than-optimal expected outcome of the Fall mid-term elections, it is unlikely that the heat bill will pass and be signed into law.

The odds are almost non-existent that a final heat standard will be issued in this Presidential term. Unless OSHA speeds up its rulemaking, it will be stretch even to get a proposal out this term, or a final standard out in a second Biden/Democratic term. I reviewed last Fall some measures that OSHA (and Congress)  can take to speed up the process:  increase OSHA’s regulatory funding, streamline and accelerate the regulatory process, and Congressional action to make it easier and quicker — rather than harder and slower — for agencies to issue regulations that protect workers and the environment.

The AFL-CIO, Public Citizen and other advocates have petitioned OSHA for an Emergency Temporary Standard (ETS) which speeds up the standard-setting process where workers face a grave danger.  While there are problematic legal issues that come with an ETS, with the climate quickly getting hotter, an ETS may be the only way workers will see a mandatory standard in the coming decade.

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