Nevada’s Heat Standard: Much Ado About Little

When writing about Trump 2.0, I expressed the hope that OSHA state plan states would take the initiative to protect workers from hazards such as excessive heat that the federal government under Trump will no longer be likely to take.  So the initial jubilation was understandable when the state of Nevada announced last month that it had issued a new OSHA workplace heat standard.

Good news, right? A state with a Republican Governor issues a heat standard to protect workers in one of the hottest states of the country. Hear that Ron DeSantis and Greg Abbott?

Unfortunately, the celebration was premature. The party was abruptly canceled called off once those most at risk — Nevada’s workers — had a chance to actually read the text of the standard.

Over the past several years, we’ve seen several OSHA state plan states issue heat standards, including California, Oregon, Washington, Minnesota, Colorado, and Maryland. And federal OSHA has issued a pretty decent proposal.

And now Nevada which joined the pack announcing in a press release issued by the Nevada Department of Business & Industry that the standard was needed because

Heat-related complaints to Nevada’s Occupational Health and Safety Administration have grown exponentially after seeing a dramatic increase in complaints submitted in 2021. During calendar year 2021, 344 complaints were filed, compared to 467 complaints filed through September 2024.

But hold your horses. Almost as bad as no heat standard is a weak heat standard that makes everyone believe that workers are well protected, but doesn’t actually contain effective protections that will actually save workers’ lives and protect their health.

And in Nevada, we have a weak standard.

Where does this new standard go wrong? Let me count the ways….

Weak Heat Standard

On the surface, the standard looks good. It requires a job hazard analysis, a written program, water, emergency procedures and training.

But then you get to the not-so-fine print.

No Trigger

One of the most important parts of any effective heat standard is the trigger — How does an employer know when to implement the protective measures mandated by a standard take effect? How do workers know when they’re to be protected?

Federal OSHA’s proposal, for example, sets a heat index of 80 degrees as the first trigger for measures the employer is required to take. (the “heat index” factors in temperature plus humidity.) The OSHA proposal also sets a “high heat trigger” of 90 degrees. California’s triggers are 82 degrees for indoor workplaces and 80 degrees for outdoor. A heat index of 80 degrees is the trigger for Oregon’s standard, as well as Maryland’s

You get the idea.

What’s the heat trigger for Nevada’s standard? There isn’t one.

In other words, if this standard was a gun, you’d have a hard time figuring out how to fire it.

What’s the heat trigger for Nevada’s standard? There isn’t one. In other words, if this standard was a gun, you’d have a hard time figuring out how to fire it.

So how will Nevada employers know when to implement the elements of the standard?

The standard does provide a definition of “Occupational exposure to heat illness”

“Occupational exposure to heat illness” means any working condition that creates the reasonable likelihood that heat illness could occur, including, without limitation:
1. Air temperature;
2. Relative humidity;
3. Radiant heat from the sun or other sources;
4. Conductive heat from the ground or other sources;
5. The movement of air;
6. The severity and duration of workloads; and
7. Protective clothing and personal protective equipment worn by an employee.

Nice list, but how do you measure and apply all of that?  Do you use the heat index that factors in temperature and humidity? Or wet bulb globe measurements that also factors in air movement and radiant heat? At what level might employees suffer occupational exposure to heat illness. A temperature of 90, a heat index of 85?  A WBGT of 80?

Who knows?  Just figure it out yourself.

I suppose a conscientious employer could consult other state heat standards and determine that anything over a heat index of 80 (like California or the federal proposal) may cause occupational exposure to heat illness. Another employer across the street, on the other hand, may decide that his workers are only exposed to working condition that may cause heat illness when the temperature reaches 90 degrees. Consider humidity? Maybe. How much?

It’s ironic that Republicans express such concern over the burden of OSHA standards on small businesses, but then issue a standard that is almost impossible to figure out without full time health and safety staff or hiring a consultant — expenses that small businesses can rarely afford.

What To Do?

If the job hazard analysis determines that there is occupational exposure to heat illness, the employer must designate a person to address emergency response, and implement the written safety program provisions (provide water, rest, cooling etc.) that “address” potential hazardous working conditions that may cause occupational exposure to heat illness.

The employer’s designee must also monitor “working conditions that may create occupational exposure to heat illness,” but only “to the extent practicable.”  So I guess if an employ is on a deadline and providing water will slow the job down or it’s just not “practicable,” there’s no need.

The technical term for the language in that phrase is “weasel words.” That’s language that allows the employer to “weasel out” of requirements.

Protecting Some of the Employees, Some of the Time

And which employees are covered the standard? In Nevada, some employees are more deserving of protection than others.

First, businesses with ten or fewer employees are not required to protect their employees against heat-related illness or death. Because I guess employees of small employers in Nevada are somehow immune from heat illness.

Nevada businesses with ten or fewer employees are not required to protect their employees against heat-related illness or death. Because I guess employees of small employers in Nevada are somehow immune from heat illness.

Section 5, Paragraph 2(a) of the standard requires employers to conduct a job hazard analysis which includes “A list of all job classifications of the employer in which the majority of employees in those classifications have occupational exposure to heat illness for more than 30 minutes of any 60-minute period, not including breaks” [emphasis added]

So wait, if the job hazard analysis identifies a job classification where only 24 of the 50 workers have occupational exposure to heat illness, then that job classification isn’t included? Those 24 workers don’t get a job hazard analysis and aren’t protected?

It seems that way. Because further down, Section 5, paragraph 2(b) states that the employer must compile “a list of all tasks and procedures, or groups of closely related tasks and procedures, performed by employees … (1) In which occupational exposure to heat illness may occur; and (2) Which are performed by employees in job classifications that are included in the list required by paragraph (a).

So if only a minority of workers in a certain job classification is exposed to hazardous heat, they don’t get water? They don’t get monitored? They’re not included in the emergency response?

And only the workers in the listed classifications get trained. So those in the minority won’t even know what the signs and symptoms of heat related illness are.

Employers of workers in air-conditioned buildings are exempted from the standard. But what if the air conditioning breaks? Do workers get sent home? In your dreams.  The keep working, as long as the employer  makes “a good faith effort to reestablish an effective climate control system as soon as practicable.” And until then, employers must implement provisions that “reasonably mitigate the risk of occupational exposure to heat illness for the affected employees.”

Neither sun, nor heat, nor humidity, nor glow of day shall stay those couriers from the swift completion of their appointed rounds. Even if it kills them.

And to make matters worse, monitoring of employees “is not required when an employee of the employer is loading or unloading a motor vehicle which operates on public highways of this State.” So I guess if you’re loading an Amazon truck all day in 103 degree weather, your working conditions don’t get monitored. If you’re repairing the truck, on the other hand, you do get monitored.

And if the loaders are not monitored, does any one notice when they start showing signs and symptoms of heat illness? When they suffer heat stroke? When they need an emergency response?

I guess neither sun, nor heat, nor humidity, nor glow of day shall stay those couriers from the swift completion of their appointed rounds. Even if it kills them.

You can rest when you’re dead (or dying)

If you’re lucky enough be be working in a classification that is covered by the standard and the employer decides that you are exposed to hazardous heat conditions, the employer must provide water (but how much? How often?)  and an unspecified “means of cooling” (Air conditioning? Shade? A paper fan?)

But you don’t get a rest break, unless you’re already sick. Section 6, paragraph 3(b) only requires the employer to provide a rest break if the employee is already showing signs and symptoms of heat illness.

What’s missing?

If you focus too much on what’s wrong with what’s there, you can forget about the things that aren’t there. Like acclimatization.  Acclimatization means the body’s adaptation to work in the heat as a person is exposed to heat gradually over time. Acclimatization reduces the strain caused by heat stress and enables a person to work with less chance of heat illness or injury.

The Maryland standard, for example, provides for acclimatization of exposed employees for a period of up to 14 days when an employee is newly exposed to heat in the workplace; and when an employee returns to work after 7 or more consecutive days of absence from the workplace. During the acclimatization period, the employee’s work time in heat is limited and  they are allowed to gradually increase work in a hot environment 20 percent more each day during a 5—14 day period

Flexibility Über Alles

The Press Release justified this weak language stating that “The new regulation provides flexibility for each business to evaluate workplace hazards associated with heat to develop and implement a plan that addresses their specific needs.”

Not the needs of the affected workers, but the needs of each business.

Flexibility is apparently Nevada’s response to the usual tired criticisms of OSHA’s alleged “one size fits all” standards.  In other words, why should employers in North Dakota or Alaska suffer under the same heat standards that apply to employers in Nevada or Florida?  Why should employers in Las Vegas be shackled to the same requirements as employers in Reno.

Flexibility can be a good thing if it gives employers the option of taking different roads that get to the same location at the same time.  But flexibility is not a good thing if only some employees get some protection some of the time at the employer’s choosing.

Now don’t get me wrong. Flexibility can be a good thing if it gives employers the option of taking different roads that get to the same location at the same time.  But flexibility is not a good thing if each employer’s “special needs” determines how much protection their workers receive.

The Nevada standard was clearly written by business, for business.  “Flexibility” is just another word for the minimum you’re required to do.

In fact, the lack of a trigger was the concession given to business interests to allow the standard to be issued:

A major reason Nevada succeeded in passing the regulation is the elimination of a temperature threshold that would have required employers to take action against heat, [Nevada OSHA Director Victoria] Carreon said.

“We decided that it wasn’t appropriate to have a uniform temperature that you would use across the board in every instance,” she said. “What would be better is to do a job hazard analysis at every type of job that a business has to determine what kind of hazards employees would face in that position.”

One of the most prominent voices against a heat protection regulation with a temperature threshold was the Vegas Chamber, an organization that supplies resources to Las Vegas’ businesses.

Lessons of the Heat

There are lessons to be learned here.

First, don’t just assume that states with Democratic governors are the only states that will respond to the growing surge of preventable heat related illnesses and deaths.  Legislators and governors of all states that experience high heat should be strongly pressured to take action to protect workers. State politicians need to be made aware of every heat-related workplace death and illness. And they need to be aware that these deaths and illnesses are preventable.

Second, beware of Republicans and their business backers bearing gifts. Don’t just assume because a state (or locality) decides to take action, that the action they take will provide adequate protection for workers.  OSHA state plan states have different processes for issuing standards, but all of them provide for public input. When a state OSHA plan decides to move forward on a heat standard, learn how to provide input. Workers, unions, worker rights groups and public health organizations need provide testimony and comments, and lobby their legislators to ensure that the state issues a strong standard.  There are plenty of examples of good standards (and now a bad one) to chart the course.

Third, don’t forget about city and county ordinances. While they may be hard to enforce, there is nothing that will pressure a state legislature or state OSHA to move on a heat standard than business complaining that they can’t possibly comply with dozens of different local ordinances.  But a bad statewide standard can pre-empt good local standards. Make sure that doesn’t happen.

As former OSHA Assistant Secretary David Michaels wrote earlier this month:

The challenge for the public health community in the coming four years is to strengthen public health protections at the state and local level, promoting advances that prevent disease and save lives. We must also document our successes and failures, objectively determining the impact of protections (or the lack of protections) in states and localities across the nation.