OSHA announced today the issuance of a draft Heat Protection standard that will protect 36 million workers from the deadly effects of extreme heat in indoor and outdoor work settings. The draft comes 52 years after the National Institute for Occupational Safety and Health first issued a “Criteria Document” calling for “employee exposure to heat in the workplace be controlled by requiring compliance with the work practice standard,” and one day after Florida’s “Don’t Speak Heat” law came into effect which prohibits Florida localities from issuing ordinances that protect workers from heat.
The proposal is part of a White House climate change day where President Biden is announcing numerous actions to protect Americans against heat and other impacts of climate change. In addition to the OSHA heat proposal, the White House announced that the Federal Emergency Management Agency (FEMA) will award nearly $1 billion dollars “for 656 projects across the country to help communities protect against disasters and natural hazards, including extreme heat, storms, and flooding.” EPA will release a report “showing the continuing and far-reaching impacts of climate change on the people and environment of the United States.”
Congressman Robert “Bobby” Scott, Ranking Member of the House Education and the Workforce Committee, applauded the Biden administration’s “crucial step forward in protecting America’s workers,” stating that “This initiative underscores the Biden Administration’s commitment to prioritizing worker protections amidst escalating concerns over rising temperatures across the country, and States’ attempts to eliminate lifesaving protections.”
And AFL-CIO President Liz Schuler also released a statement praising OSHA’s action: “As we enter the second summer with temperatures reaching scorching record highs, the Biden administration’s new proposed rule could not be more urgently needed. Hot and humid conditions have long put indoor and outdoor workers at significant risk of heat-related illness and injury—with workers of color and immigrant workers facing disproportionate risks in many states.”
What’s in the Standard
You can read the 18 page regulatory text here. In summary, the standard would require:
- Heat injury and illness prevention plan: The employer must develop and implement a work site heat injury and illness prevention plan that describes all policies and procedures necessary to comply with the requirements of this standard and designates one or more heat safety coordinators. The employer must also seek the input and involvement of non-managerial employees and their representatives.
- Identifying Heat Hazards: The employer must use either a heat index (temperature plus humidity) or Wet Bulb Glob Temperature (temperature, humidity, radiant heat and wind)
- Triggers: Under the proposed rule issued Tuesday, OSHA would adopt two heat index triggers: an “initial heat trigger” at 80 degrees, and a “high heat trigger” at 90 degrees. The initial heat trigger would require employers to provide drinking water and break areas that workers can use as needed. If above the initial heat trigger, the employer must provide 1 quart of drinking water per employee per hour, shaded or air-conditioned break areas and the employer must “allow and encourage employees to take paid rest breaks in the break area required by paragraph (e)(3) or (e)(4) if needed to prevent overheating.” If employees are exposed above the high heat trigger, the employer must provide employees a minimum 15-minute paid rest break at least every two hours and implement a system for observing employees for signs and symptoms of heat-related illness
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Note the emphasis on “paid” rest breaks. This is important, especially for piece-work where employees, for example, are paid for the number of tomatoes picked in a day. - Acclimatization: Employers will need to allow new and returning workers time to gradually acclimate their bodies to adjust to the heat.
- Training: Both employees and supervisors must be trained about the heat standard.
- Emergency Response Plan: Employers need to develop a plan to respond to workers who are showing signs or symptoms of heat illness, including how to get them emergency care in severe cases
- Non-Discrimination: Employers are prohibited from discharging or in any manner discriminating against any employee for exercising those rights.
OSHA Standards in a Post-Chevron World
Industry and business associations like the Chamber of Commerce are already fighting OSHA’s long-overdue initiative to protect workers from heat, claiming (as they claim with all OSHA standards) that it will cost too much, causes businesses to go bankrupt and lay off employees, that it’s a “one size fits all” requirement, that employers are already doing the best they can and that OSHA should just use the General Duty Clause. They can’t sue to stop a proposal, but once the final standard is issued, they will go immediately to court.
Chamber of Commerce Vice President Marc Freedman recently warned that an OSHA heat standard could cause businesses to go bankrupt, throwing out of work the very workers OSHA is seeking to protect. And today, Freedman stated that the rule would present huge challenges for employers and that “it is extraordinarily difficult for them to determine when heat presents a hazard because each employee experiences heat differently.”
There is nothing new about those accusations. There the same arguments that the Chamber of Commerce and other business interests have used to oppose OSHA standards since the creation of the agency 53 years ago. And their inevitable lawsuits seeking to overturn OSHA standards almost always fail.
Until now.
Until the Supreme Court’s decision earlier this week overturning the Chevron decision, judges had a clear path forward when considering the legality of standards and regulations. The Supreme Court’s Chevron doctrine recognized that laws were inevitably not specific in many areas, and Congress was unable to predict what issues would arise in the far future.
Due to the technical and scientific complexity of regulations and standards the Supreme Court recognized that judges are not experts and that the courts should therefore defer to the experts at the agencies, as long as their policy decisions were “reasonable.”
Now, however, the courts are supposed to use their “independent judgment” to determine the constitutionality of a regulation. What this means in practice is not clear.
Take this with a grain of salt because I’m not a lawyer, but it seems to me there are now 4 possible outcomes in the case of OSHA’s heat standard.
- A worker-friendly judge could decide that OSHA knows its business and that the new standard is great. But inevitably, any decision would like be appealed to the Supreme Court.
- A court could decide that because the Occupational Safety and Health Act does not mention heat, OSHA has no authority to issue a heat standard with an express Congressional mandate. I find this unlikely because its been well known since 4th day of Genesis that heat is an occupational hazard.
- A judge could use his or her “independent judgment” to decide that, yes, maybe heat is a hazard that OSHA should regulate. But based on their high school science class, or their experience cutting the lawn in the summer, or some seductive argument from the Chamber of Commerce, maybe the 80 degrees trigger doesn’t make sense. Maybe the trigger should be 85 or 90 degrees. Maybe the judge doesn’t like the idea of training workers, so that part is out. Maybe a judge decides that it isn’t fair to require business owners to pay workers during their rest break, or that OSHA is requiring more water per hour than workers actually need. This seems like the most likely scenario.
- Or this whole thing could be no big deal. There are 50 years of legal decisions regarding OSHA rulemaking and that because Chevron deals with legal ambiguities, as opposed to scientific facts, some legal experts think that the demise of Chevron Deference will not significantly undermine OSHA’s ability to issue standards in most cases.
But the bottom line is that we’re dealing with rogue MAGA courts that seem to have no respect for precedent or workers’ rights. And until we have further clarification from the courts when cases are challenged, we won’t know for sure what will be happening.
What are the Next Steps?
The proposal will now go through a 120-day-long written public comment period, which will take us to November. The comment period will be followed by public hearings conducted by OSHA. OSHA will need some time to consider the written comments before the hearing and given the size and scope of this standard, the hearings are likely to last several weeks.
So at an accelerated rate, the hearings may begin in December and likely not conclude until early next year. Hearings are then followed by another 60-120 day period for post hearing comments and briefs. OSHA will then consider all of the comments received during the public comment periods and the hearings, and modify the proposal as necessary to develop a final standard. The final draft will then again be sent to the White House for review before final issuance. All of that will probably take close to two years from now.
Of course, that’s assuming a second Biden administration. If Trump is reelected, the standard will like either be withdrawn or put into mothballs and workers will continue to get sick and die for at least another four years.
[…] on his occupational safety blog, Barab speculates on a range of outcomes for the heat rule under the new […]