As the nation plunges into the summer’s first major heat wave, protections for workers seem have taken a couple of steps forward and one step back. Progress and setback.
In summary, OSHA is making great progress on a national heat standard and CalOSHA, following a palace coup, has issued an indoor heat standard.
This is what 75 million Americans including millions of workers across much of the United States are waking up to this week:
As a punishing heat dome continues to intensify over the northeastern United States, scores of record high temperatures are set to be broken Wednesday from Michigan to Maine, including in Detroit, Cleveland, Buffalo, Albany, N.Y., and Caribou, near Maine’s northern tip. This long-lasting heat wave is just starting to peak and will continue to scorch the Midwest, Northeast and Mid-Atlantic into the weekend. Temperatures are set to climb well into the 90s and could approach 100 in some areas. Factoring in humidity, it could feel like 100 to 110 degrees.
That sounds uncomfortable to me as I race from an air-conditioned house to my air-conditioned car to an air-conditioned grocery store. The dogs don’t like it much either because it’s too hot to walk them.
But for the nation’s millions of construction, farm, warehouse and other workers, the heat is not just uncomfortable, it’s deadly. And neither the federal government, nor the vast majority of states have legally enforceable standards to protect workers from the heat. In fact, some states, like Texas and Florida, are going in the opposite direction: making work even more deadly by prohibiting localities from passing ordinances to protect workers from heat.
Because what’s a few dead workers when your business friends are upset?
Last March, the Phoenix, Arizona City Council did something that would be illegal in Texas and Florida: they unanimously passed an ordinance requiring all city contractors and subcontractors to develop and maintain a written heat safety plan to prevent heat-related illnesses and injuries in the workplace.
The good news is that last March, the Phoenix, Arizona City Council did something that would be illegal in Texas and Florida: they unanimously passed an ordinance requiring all city contractors and subcontractors to develop and maintain a written heat safety plan to prevent heat-related illnesses and injuries in the workplace.
Heat: What is Being Done?
Progress is being made. The Occupational Safety and Health Administration, with unprecedented speed, has submitted a proposed heat standard to the White House for review. . I say “unprecedented speed” because it’s been less than three years since OSHA started work on a standard to protect all American workers from heat.
“Three years to get to a proposal?” you might ask. That’s speed?
Yes. For a small, underfunded, overburdened agency like OSHA, three years to a proposal is fast. The Government Accountability Office estimated in 2012 that it takes OSHA an average of 7 years to issue a final standard. That estimate was wildly optimistic. It took OSHA 20 years to issue its silica and beryllium standards. (Of course it didn’t help that for 8 of those 20 years, anti-worker, anti-OSHA Republicans controlled the White House — and OSHA.)
Unless Trump is re-elected in November, OSHA could conceivably have a final standard out less than two years from now. For a major OSHA standard that covers tens of millions of workers across the country, five years from start to final issuance is unprecedented speed. As someone who oversaw OSHA’s standard-setting process for 8 years, I’m impressed.
But serious legal obstacles loom.
If Trump is re-elected in November, we can expect the OSHA heat standard to be killed — or at least put into limbo for the duration. Republicans these days don’t do OSHA standards unless forced by the courts.
If Trump is re-elected in November, we can expect the OSHA heat standard to be killed — or at least put into limbo for the duration. Republicans these days don’t issue OSHA standards unless forced by the courts. And Republican Congressional leadership has condemned OSHA’s efforts to protect workers from heat.
Our friends at the Chamber of Commerce are already readying their opposition and likely lawsuits. Chamber of Commerce Vice President Marc Freedman fears that an OSHA heat standard could cause businesses to go bankrupt, throwing out of work the very workers OSHA is seeking to protect. Of course, this is the same line that the Chamber has used to oppose every OSHA standard for the last 50 years. And it’s never true. But what’s a few worker deaths when the profitability of their employers is at risk of being reduced?
And although OSHA almost always wins the legal battles when the Chamber and its business cronies inevitably sue OSHA after it issues a standard, OSHA’s efforts could be more seriously imperiled by nests of Trump-appointed judges. In addition, the Supreme Court could any day now eliminate “Chevron Deference” which gives regulatory agencies the authority to issue protective standards. Stay tuned.
Coup (and Progress) in California
Meanwhile, the CalOSHA Standards Board has finally issued a new indoor air standard — preceded by a palace coup. A coup that’s not good for workers.
I described recently the controversy over California’s indoor heat standard which the CalOSHA Standards Board was on the verge of finalizing last March. A last minute veto from the California Department of Finance scuttled final approval, when the Finance Department claimed that the standard would cost the state “billions” to protect employees in correctional institutions.
The shocked Board nevertheless went ahead and approved the standard — a largely symbolic move because a CalOSHA standard cannot be finalized with the approval of the Department of Finance.
The main problem, apparently, was California Governor Gavin Newsome’s concerns about the state’s historic budget deficit. Newsom had indicated his general support for the rule, but also cautioned that “it is imprudent to move forward with a cost estimate that is off by billions of dollars.” The Cal/OSHA Standards Board announced at the end of April that it would revise the proposed indoor heat rule to carve out prisons, local detention facilities and juvenile facilities.
Good for warehouse workers, not so much for corrections staff. But two steps forward, one step back.
All was more or less well and fine until a couple of weeks ago when Standards Board member Laura Stock received a phone call from Governor Newsom’s appointments office informing her that after 12 years, her appointment to the Standards Board is “terminated immediately.” No explanation except that the Governor wanted to go “in a different direction.”
The caller did not specify in which direction the Governor wanted to go, although the the “new direction” seems to lead toward retaliation against outspoken worker advocates.
A couple of weeks ago when Board member Laura Stock received a phone call from Governor Newsom’s appointments office telling her that her appointment to the Standards Board is “terminated immediately.”
During the contentious March Board meeting, Stock had called the Department of Finance’s action “completely outrageous” and said it “undermines” the board, while Chairperson Dave Thomas said the administration “set us up” before moving to vote on the standard anyway.
Stock is Director of the Labor Occupational Health Program and UC Berkeley and an outspoken pro-labor member of the CalOSHA Standards Board, and Thomas is President at the Northern California District Council of Laborers.
Thomas was allowed to remain on the Board, but was kicked out of the Chair position and replaced by attorney Joseph Alioto (of the famous California Alioto family.) Alioto is a politically connected anti-trust attorney with no background in occupational safety and health.
Stock wasn’t even given a thank you or a farewell party, or allowed to “voluntarily” submit her resignation so that she could “spend more time with her family.” And there is no replacement waiting in the wings. Just “terminated immediately.”
(Alioto, the newly-appointed Chair, did give Stock and Thomas a long, warm tribute to open the June 20 Board meeting, and promised them a plaque — which wasn’t ready for presentation. But with no acknowledgement by Alioto of the unfortunate events leading to Stock’s departure and Thomas’s demotion, the whole presentation seemed a bit creepy and awkward.)
Labor allies were understandably upset by Stock’s defenestration and Thomas’s demotion.
Stephen Knight, executive director of the advocacy group Worksafe, praised Stock as “one of the most experienced voices for worker health and safety” and Thomas for leading the board through the COVID-19 pandemic. In those years, the board considered renewals of an emergency rule to reduce transmission of the virus in worksites, amid intense public backlash from proponents of reopening businesses.
“If the governor has a direction or vision for worker health and safety, it’s not one that he’s articulated, and we’re all ears,” Knight said. “We’re concerned about what these surprise removals may mean about the governor’s commitment to worker health and safety, and climate justice.”
“It’s concerning that a member like Laura Stock, who has so much expertise and is so committed to workplace health and safety, would be removed,” said Tim Shadix, legal director at the Warehouse Worker Resource Center, which is pushing for the indoor heat illness protections….Shadix questioned whether the board changes could be connected to those actions. “It certainly seems a little bit suspicious and worrying that two of the members who were most outspoken for moving that indoor heat standard are now being demoted and removed,” he said. “We hope that this is not going to impact that being voted on and approved next week. Every summer that goes by without that standard in place, we see more suffering.”
Several who attended the Board’s June 20 meeting, including Worksafe’s Stephen Knight, spoke in support of Stock and Thomas, and condemned the Governor’s action.
The California business community was, unsurprisingly, supportive of Newsom’s action (although their courageous representative wished to remain anonymous, fearing “reprisal” from Stock.)
A representative of a large employer association did not lament Stock’s departure, claiming she often failed to listen to the concerns of member companies about proposed health and safety requirements.
“We as business stakeholders never really felt like Laura had any capacity for dispassionate analysis of the issues laid in front of her,” said the representative, who requested anonymity because they feared reprisal from Stock if she accepted another regulatory post. “She always had a position. You always knew how she’d vote. She never asked any questions of any criticism we would lay out.” [emphasis added]
I have to admit, I always knew how Laura would vote as well: She would always vote to protect workers — based on passionate analysis of the issues laid in front of her.
Regarding the “retaliation” fears and in the spirit of full disclosure, I admit I’ve known Laura Stock for a long time. Laura Stock is a friend of mine. And Laura Stock is no Donald Trump.
CalOSHA Indoor Heat Standard Approved
There is some good(ish) news, however. Following the coup, the CalOSHA Standards Board adopted the new California indoor heat standard at the June 20 meeting, exempting California prisons, local detention facilities and juvenile facilities. I guess corrections employees are somehow immune from heat. The California Department of Corrections and Rehabilitation operates more than 30 adult state-owned facilities across the state, most of which are cooled by fans or evaporative coolers, not air conditioning. The Board claims it will look at alternative means to protect corrections employees, but worker advocates are worried.
AnaStacia Nicol Wright, with the worker rights organization WorkSafe, worries the process could drag out, putting thousands of employees — and prisoners — at risk for another summer, or more. “Incarcerated workers are also employees under California labor code,” she said at the meeting. “These workers are at risk of heat exhaustion and dehydration, due to working in often archaic, poorly ventilated buildings with little protection from temperatures.”
The standard won’t come into effect immediately. The Office of Administrative Law has 30 days to review it, although the Board asked them to expedite up the process. If that happens, the new standard could take effect in August. Otherwise, it might be October — just in time for Fall.
The CalOSHA Standards Board adopted the new California indoor heat standard at the June 20 meeting, exempting California prisons, local detention facilities and juvenile facilities. I guess corrections employees are somehow immune from heat.
The new standard will require employers to provide workers with water and cool places to take breaks when indoor temperatures hit 87 degrees Fahrenheit, or for some employees 82 degrees, depending on clothing worn or work areas. When the temperature rises above 87 degrees, employers are required to shift work activities to cooler times of the day, cool workspaces using fans or air conditioning or other changes to how people work. The standard also requires acclimatization as well as emergency response plans and worker and employer training.
Business groups are, of course, upset about the alleged cost and burdens on small employers, etc., etc., etc.
In Conclusion
It’s hot out there. Workers are dying even though preventive measures are readily available that can prevent those deaths. The feds, as well as some states and localities are moving forward on standards to protect workers. OSHA has issued very good guidance on protecting workers from heat, and despite legal setbacks, has issued some General Duty Clause citations where employers are clearly endangering workers.
But workers will continue to die in growing numbers until action is taken on the federal level, and while we’re wating, on the state and local levels. The forces opposing worker protection are strong. On the state and local level, workers must fight the DeSantis’s and Abbotts and pass local ordinances. States can act as well, and several — including California, Oregon and Washington — already have.
Unions — where workers are able to join — and worker advocates have also been taking action:
Unions and worker advocates are now regularly pressing for heat protections as part of their focus on occupational safety and health. The Teamsters won air-conditioning in trucks as well as other heat protections in their most recent collective bargaining agreement. The National Council for Occupational Safety and Health is training workers to fight for protections. The Fair Food Program, a partnership among farmers, farmworkers and retail food companies that ensures better wages and working conditions, has among the strictest heat standards in the country for farmworkers.
On the federal level, we can push Congress to pass the Asunción Valdivia Heat Illness, Injury, and Fatality Prevention Act of 2023 (H.R. 4987 and S. 2501) that would require OSHA to issue an interim final heat standard within one year of enactment.
And most importantly, we need a second Biden term — or workers across the country will continue to die needlessly from heat hazards that could have been prevented.
Finally, Governors and those in power who profess to respect workers’ rights should not be retaliating against strong worker advocates like Laura Stock and Dave Thomas. True, the California heat standard was issued anyway, but Laura’s presence and Dave’s leadership will be sorely missed in the future as the Standards Board goes on to address other workplace hazards.