The first week of the public hearing on OSHA’s Heat Injury and Illness Prevention in Indoor and Outdoor Workplaces proposed standard has drawn to a close. It’s been the best of times and the worst of times.
The hearing will go on for another week and a half, but we’ve already heard horrific stories of workers dying when implementation of this standard could have saved their lives. We’ve heard the same old tired objections to this standard that we hear opposing every OSHA standard. And we’ve been entertained by some amazing new allegations that attempt to undermine the need for the standard and the strong science behind the proposal — and make up some crazy stuff as well.
Below are the major highs and lows of the hearing so far.
Background
For those of you just now tuning in, OSHA issued a proposed heat standard in July 2024, completed a pre-hearing written comment period that ended last January, and scheduled a public hearing for this month. You can find all of the written comments here. Amazingly, the Trump administration has allowed the hearing to move forward despite Republican hostility toward all OSHA standards, and this one particularly.
A three-week long public hearing began last Monday, June 15, and will continue through July 2. Another 90-day post-hearing comment period has been scheduled following the end of the public hearing.
The proposal has several different elements–elements that have proven effective in other federal state and private sector heat programs and guidelines. (The actual regulatory text begins on page 71069.)
The basics are:
- A written Heat Illness Prevention Program for employers with more than ten employees
- Two heat triggers — an initial trigger that kicks in when the heat index measures 80° or higher, and a high heat trigger of 90°.
- Provision of water, paid rest and shade. Rest breaks are “as needed” under the initial trigger, and 15 minutes every two hours above the high heat trigger.
- An acclimatization process for workers who aren’t used to working in heat
- Training for both workers and employers
- An emergency response plan to address workers who show signs of heat-related illness.
The hearing schedule can be found here. You can watch the daily hearings live by clicking on the current day here, and previous days’ hearings are archived so you can go back to see what you’ve missed. I’d recommend checking them out. Not only is the testimony interesting (if sometimes infuriating), but OSHA regulatory hearings are unique in that anyone who signs up as a witness can also question other witnesses, making for a sometimes lively discussion.
The hearings are totally remote and recorded so you can catch up on previous days’ testimony if you missed it. That means you can binge-watch the entire multi-week hearing. And if you’re an OSHA nerd like me, they’re much more entertaining than whatever is on Netflix or Apple. (Well, maybe not as entertaining as Severance, but close. And the heat hearing has more episodes.)
This is in most ways a major improvement over past years — aside from inevitable technical glitches — when the hearings were live in the DOL auditorium, and around the country, if needed. And if you missed them, you had to wait weeks to be able to go down to the DOL building and make copies of the written transcripts.)
Heat Kills
The two main contenders — the AFL-CIO and the U.S. Chamber of Commerce — started things off. Their testimony was followed by other unions, corporate law firms, business associations, public health associations, public interest group representing workers, immigrants and other affected groups and concerned individual employers, workers and researchers.
Much of the testimony was predictable. We’ve all seen the statistics documenting increasing numbers of workers getting sick and dying from heat-related illness. Many of the workers testified about the need for a strong, enforceable standard to prevent heat-related illness and improve productivity. And they filled in the tragic details behind those statistics.
Groups like the National Employment Law Project, the UFW Foundation, AFSCME and many, many others told stories of workers like Robert Clark, a 20 year-old bakery worker who died of heat stroke in a 106° facility, Ronald Silver II, a Baltimore sanitation worker who died on a neighbor’s front porch after picking up garbage when the heat index hit 108°, Maria Isabel Vasquez Jimenez, a pregnant 17-year farm worker old without access to to water who died after working 9 hours in 95 degree heat. All of their lives would have been saved if they had been acclimatized and their employers were required to provide them with water, rest and shade, and if there had been an workable emergency response plan.
Witnesses told of workers who left work (or were sent home by their employer) after exhibiting symptoms of heat illness, and then died at home. They told of workers who didn’t feel it was safe to take a needed break because they were piece-rate workers who didn’t want to lose money. Or workers who feared retaliation from employers if they complained that they were ill or needed to get water. We heard of workers who lived through hot workdays day after day, but now suffer from heat related chronic kidney conditions and other diseases. We heard of workers getting injured on the job because the heat impaired their ability to safely climb ladders and work with machinery.
The human tragedies are endless. But they all have one thing in common: All of these tragic illnesses and deaths could have been prevented if a strong heat standard had been in effect.
The human tragedies are endless. But they all have one thing in common: All of these tragic illnesses and deaths could have been prevented if a strong heat standard was in effect.
Of course, not all employers neglect the safety of their workers — either because they actually care about the health and safety of their workers, or because they operate businesses in states that have a heat standard. Many of these employers not only meet the minimal requirements in the OSHA proposal, but go above and beyond those requirements. OSHA was also able to hear how these employers find it economically and technologically feasible to comply with similar standards passed in other states.
And we’ve heard reports of good employers who are already going above and beyond the elements required in OSHA’s proposal.
Business Associations: Same Old Same Old
Meanwhile, we’ve witnessed the same old tired complaints opposing the heat standard that the business community repeats to block every health and safety standard OSHA has ever proposed:
Chamber of Commerce Vice President Marc Freedman summarized the arguments that almost every industry witness would repeat:
As I’ve been granted the first employer representative speaking slot, I want to be the first on the employer side to use the term you’ll be be hearing throughout these proceedings: OSHA’s proposed standard is a one-size-fits-all approach. The proposed standard makes no allowances for differences in geography, workplaces, employee sensitivity to heat, nature of the job or task, or any of the other many variables associated with determining how to protect employees from over exposure to heat. To state the obvious, 90 degrees — the high heat threshold — has different impacts in different locations. Ninety degrees in Phoenix is not the same as 90 degrees in New Orleans, or Houston or Portland, Maine or even here in DC.
Added to the “one-size-fits-all” myth are allegations that OSHA underestimated costs and overestimated benefits. The OSHA proposal is not feasible, they argue — especially for small businesses who will be driven into bankruptcy, throwing thousands of workers into unemployment and poverty.
Mandatory 15 minute breaks every two hours (for the high heat threshold) will mean that your restaurant food will get cold, your baggage will miss your flight on hot days and concrete will harden in trucks before being unloaded.
All we need is more education and training, they stress. All we need is more guidelines. Just trust us to protect our employees, they ask.
None of this makes much sense, of course.
The standard does take into consideration regional differences: If it’s hot, you have to do stuff, no matter where you are. If it’s never hot, you don’t have to do stuff. Employers always file lawsuits after OSHA issues standard, challenging the standards’ feasibility. And courts almost always upheld OSHA’s findings that standards are economically and technologically feasible and don’t result in bankruptcy or unemployment. In fact, OSHA standards have been found to cost less than OSHA estimates and increase productivity, while protecting workers.
We’ve heard employers argue that we don’t need regulations because employers treat workers like they are their own family members and that the worker shortages mean that employers will protect their employees because it’s so hard to replace them if they bake to death.
Also, they contend, while some workers in some occupations in some states may need a better protection, our industry (construction, agriculture, indoor workplaces, etc.) should be exempted because they face “unique challenges” that a “one-size-fits-all” standard can’t address.
Fifty-five percent of workers who died of heat stroke in 2023 were construction workers because they work in high heat conditions and their work is often physically stressful. Yet the construction industry wants to be exempted
Fifty-five percent of workers who died of heat stroke in 2023 were construction workers because they work in high heat conditions and their work is often physically stressful. Yet the construction industry wants to be exempted because construction workers do too many different jobs, can’t take breaks or the concrete will harden, and can’t tell if they’re working inside or outside. And the standard will further raise the cost of housing. Water bottles present a tripping hazard, and can be dropped on someone’s head floors below. Climbing down from heights to get water or take a break presents a greater hazard than dying of heat exposure. And on and on.
Twenty percent of workers who died from heat exposure in 2024 were agricultural workers. Yet the agriculture industry accuses OSHA of killing American farms. Riots and mass starvation will ensue. And anyway, there really is no problem because farm workers can already just take breaks and get something cool to drink any time they want.
Finally, many employers state that they want a “performance” standard that would allow employers to figure out their own protections if they protect workers. Perhaps something similar to the weak Nevada standard. The “outcome should be the regulatory obligation” they argue. Or OSHA should just allow employers to do anything that “works,” whatever that means.
How would OSHA enforce such protections to ensure that workers are actually protected? Would employers only be cited if their protections didn’t “work” — In other words, if a worker gets sick? What if the “outcome” doesn’t come out OK and a worker gets sick or dies. Then and only then is the employer in violation? Would OSHA only be able to cite reactively — after a worker’s illness or death proves that the program didn’t “work” and the “outcome” was death?
Not all the industry objections were crazy. The National Association of Tower Erectors (those people who assemble and maintain the giant cell phone towers) made a convincing argument that there is no shade up top, it can take a couple of hours just to climb up and down, and anyway, it’s cooler way up top. So mandatory water and shaded rest breaks every two hours may not be feasible in some situations. OSHA may need to develop some partial alternative language for cases such as these. But that’s exactly why OSHA’s public comment period and hearings are so important.
Natural Resistance, Evolution and the 5th Amendment
A lot of those objections are the same old stuff that we hear from employers at every OSHA hearing. All OSHA standards are labeled “one-size-fits all.” Every regulated industry wants to be exempted.
But we’ve also heard some entertaining, but crazy new theories about why we don’t need many of the elements of the proposed standard.
Natural Acclimatization
Workers need to get accustomed to heat. This is called acclimatization. More than half of occupational heat fatalities occur during a worker’s first few days of working in hot conditions and over 70 percent of heat-related deaths occur during a worker’s first week. That’s why the OSHA heat proposal requires an acclimatization period for workers.
One of the craziest industry arguments is that the heat triggers and acclimatization requirements of standard don’t consider regional or geographic differences as if the human body is different in Texas than it is in Minnesota. People in hot states are already accustomed to high heat, they argue; they come to work naturally acclimatized because they live in hot climates — even if they’re living in an air-conditioned apartment for weeks before they start an outdoor construction job.
Yet most heat-related illnesses and death occur in the hottest states.
Hispanic workers have the highest level of exposure to workplace heat hazards and death. In fact, 23 of 55 reported heat-related deaths in the United States in 2023 were Hispanic or Latino workers. Yet, we heard business associations insist that workers from countries with warm climates come to the job pre-acclimatized, so they don’t need the acclimatization requirements in the proposal.
Compared to U.S. citizens, immigrants have more than three times the risk of dying from heat-related illness – with the majority of deaths occurring in just three states, according to a recent study.
In other words, to state the obvious, the Chamber of Commerce’s testimony was wrong: 90 degrees — the high heat threshold — has the exact same effect on workers in different locations. Ninety degrees in Phoenix is exactly the same as 90 degrees in New Orleans, and Houston and Portland, Maine and even here in DC.
To state the obvious, the Chamber of Commerce’s testimony was wrong: 90 degrees — the high heat threshold — has the exact same effect on workers in different locations. Ninety degrees in Phoenix is exactly the same as 90 degrees in New Orleans, and Houston and Portland, Maine and even here in DC.
Note: OSHA has not ignored the fact that a worker may already be acclimatized before starting a new job. The OSHA proposal exempts workers from the acclimatization requirements “if the employer can demonstrate the employee consistently worked under the same or similar conditions as the employer’s working conditions within the prior 14 days.”
Accelerated Human Evolution
We’ve even heard amazing theories of accelerated human evolution. According to the Conn Maciel Carey law firm testimony, OSHA’s heat trigger is already outdated because climate change has caused the human body to quickly evolve:
The workforce/population is adapting, like it always does, and what we can safely tolerate today is much different (i.e., higher, so far as temperature is concerned) from what we could tolerate decades or even a few years ago. This concept is akin to long-term climate-based acclimatization.
I’m sure Darwin would be impressed at this miracle in human evolution. OSHA, however, should stick to the facts and the science, rather than fantastical theories. Even if they come from prominent law firms.
Taking the 5th
My favorite moment came on the morning of the second day of the hearing when Conn Maciel Carey (CMC) attorney Beeta Lashkari refused to answer a question, claiming some sort of novel fifth amendment right to refuse to answer a question, apparently because a previous CMC report may have incriminated their current testimony.
A little background: On August 2, 2024, Ronald Silver II, a Baltimore sanitation worker, died from heat stroke on a day when the heat index reached 108 degrees. The Mayor’s office hired CMC to do a report on death and issue recommendations. I sharply criticized the choice of CMC at the time, based on the law firm’s practice focuses on defending companies who have been cited by OSHA and assembling coalitions to oppose every OSHA standard.
My favorite moment came on the morning of the second day of the hearing when CMC attorney Beeta Lashkari refused to answer a question, claiming some sort of novel fifth amendment right to refuse to respond to a question, apparently because a previous CMC report may have incriminated their current testimony.
And I take this opportunity to publicly apologize to CMC for that critical post. Despite serving the forces of the dark side, CMC actually issued a pretty decent report that sharply criticized the Baltimore Department of Public Works (DPW) for not having a formal heat-related safety program, insufficient emergency protocols, inadequate training, and rampant employee distrust and fear of retaliation,
The report recommended enhanced training around heat and heat related illnesses for both workers and employers, a better emergency response plan and non-retaliation training enforced through anti-retaliation mandates. Like OSHA’s proposal, the report recommended mandatory cool down rest breaks when the heat index reached the high heat threshold of 90 degrees: 15-minute minimum paid rest breaks at least every two hours.
CMC’s recommendations actually went way beyond OSHA’s proposed standard recommending that DPW institute a stop-work trigger during those portions of the day that reach an extreme heat index of 105 degrees. According to the report, “because of the extraordinary physical demands of solid waste collection, we believe at such a high heat index, the work simply cannot be done safely, regardless of how much water is provided or what breaks are mandated.”
Impressive. Especially since CMC’s OSHA testimony opposes most of the OSHA proposal: They oppose heat thresholds, acclimatization periods, mandatory cooling off breaks — all items their report advocated — and argue that indoor work should be completely exempted from the standard.
During the question period following CMC’s testimony, AFSCME Health and Safety Advocate Ellie Barbarash suggested to Lashkari that the strong recommendations in their Baltimore report didn’t exactly “mesh” with their testimony at the hearing. Barbarash asked her to address those discrepancies. (Ronald Silver was an AFSCME member.) (Start at 1:15:30)
I’ve watched and participated in more OSHA regulatory hearings than I can count on both hands and both feet, and I have never heard a witness simply refuse to answer a question because it was “irrelevant for the rulemaking hearing.”
Lashkari’s answer: “Your honor, I would like to maybe, um, just suggest that this is irrelevant for the rulemaking hearing.”
Even the hearing judge was rendered speechless for a few seconds, finally asking “Is that your answer, Ms. Lashkari?”
Now I’ve watched and participated in more OSHA regulatory hearings than I can count on both hands and both feet, and I have never heard a witness simply refuse to answer a question. Generally, when a witness doesn’t want to answer a question (or has no credible answer to a question), they slither out by promising to address the question in post-hearing comments. (and then “forgetting” to answer the question in post-hearing comments.)
But I’ve never heard anyone refuse to answer a question because it was “irrelevant for the rulemaking hearing.” Especially when the question was directly relevant to the hearing.
What’s Missing?
Rebecca Reindel, the AFL-CIO’s health and safety director, noted another unique factor in this hearing: The absence of NIOSH.
Again, I’ve observed a lot of OSHA hearings and I’ve don’t remember a hearing — especially a hearing addressing a health standard — that had no testimony from NIOSH — the federal government’s only occupational safety and health research agency. Considering that NIOSH first developed criteria for OSHA to promulgate a federal standard in 1972 (and updated it twice in 1986 and 2016), the absence of NIOSH from this hearing is inconceivable. But these are Trump times, and NIOSH is no more.
What’s Next?
The hearing will go on for another week and a half with lots more witnesses — including me, former Assistant Secretary David Michaels, and former OSHA Policy Director Deborah Berkowitz next Friday. After the comment period ends, there will be a 90-day period for post hearing comment where witnesses can fill in information they couldn’t provide during the hearing, and any other comments responding to hearing testimony.
Under normal (e.g. non-Trump) circumstances, OSHA would then consider all of the comments they received during the pre-hearing comment period, the hearing and the post-hearing comment period. OSHA must then explain why they accepted or rejected the comments, revise the risk, economic and feasibility analyses as needed, and then develop a final standard that will be reviewed by the White House Office of Information and Regulatory Affairs (OIRA), before issuing the final standard. That process can take two years or more for a major standard.
But these are Trump times, so no one really knows what’s going to happen now. The odds favor OSHA just sitting on the standard and not doing any real work to finish it. OSHA could also just withdraw the standard from consideration, although that could run into legal problems at this late stage in the process. The other alternative would be for OSHA to issue a very weak standard that would be more to industry’s liking — perhaps exempting certain industries, or softening up many of the current requirements.
Congress could also add language to OSHA’s budget bill prohibiting the agency from working on the standard.
One thing no one is betting on is the Trump administration issuing a strong heat protection standard. Although I’d love to be proved wrong.