To the surprise of no one, the Republican-controlled House Education and Workforce Committee yesterday approved H.R. 6213, the Heat Workforce Standards Act of 2025, a bill to stop OSHA from issuing a workplace heat standard “substantially similar” to the strong 2024 Biden proposal. All Republicans members voted for it; all of the Democrats against. Next stop is the House floor for a final up or down vote. It’s unclear whether the bill will make it that far, and if it does, it won’t make it through the Senate where 60 votes are required to pass legislation.
But, of course, becoming law was never really the point. The goal, in this election year, is for Republican House members to show their supporters (and contributors) that they’re supporting lies, injustice and the Capitalist way.
The discussion at the markup was not uninteresting. (If you missed it, you can still watch it here.)
Mark Messmer, the bill’s Godfather, called the Biden proposal a “terrible rule” that would “create a one-size-fits-all framework.” So action is demanded! The Biden rule (which the Trump administration will never issue) “must be stopped before it causes significant harm to American businesses without any evidence that it will create one iota of improvement for existing workplace safety efforts.”
Mr. Messmer must have not read the OSHA proposal or listened to the hearing, because OSHA and witnesses presented mountains of hard evidence that the standard would create billions of iotas of improvement for workplace safety efforts — improvement that will protect the health and save the lives of countless workers.
He did make one true statement: “Responsible employers already take heat related safety very seriously.”
True, but, of course, OSHA standards and enforcement don’t target “responsible employers.” They target the far too many employers who are not responsible.
Messmer then displayed his ignorance of how workplace safety works in this country, claiming that for irresponsible employers, ” states already have strict regulations in place to deal with those bad actors.”
Wrong. Except for a few states, most don’t have “strict [heat] regulations in place to deal with those bad actors” — or any heat regulations at all. In fact, Texas and Florida prohibit localities from passing ordinances protecting workers from heat.
Anyway, Messmer continued, workers don’t need no stinkin’ heat standard. There are already federal protections in place: “OSHA already has a General Duty Clause which requires employers to protect workers in heat situations with needed flexibility and other circumstances.”
Again, he’s wrong. More about the General Duty Clause below.
Messmer concluded with the rather astounding (even for Republicans) assertion that “The Biden Harris proposal is a bad approach to a problem that doesn’t need solving.”
Messmer concluded with the rather astounding (even for Republicans) assertion that “The Biden Harris proposal is a bad approach to a problem that doesn’t need solving.”
Democrats Fight Back
Ranking member Bobby Scott (D-VA) strongly opposed the bill, noting that heat hazards — and their solutions — are nothing new:
People have recorded the dangers of heat stress going back to ancient Greece and the Old Testament. For centuries, people have realized that there are simple steps to prevent heat illness. rest, water, shade, taking care to gradually get used to the heat conditions. And this bill would make requiring these simple lifesaving steps impossible.
Representative Alma Adams (D-NC), former chair of the Workforce Protections subcommittee, ripped Messmer and new rear exit, calling his bill “cruel and deadly.” Explaining that the 50 reported heat-related workplace deaths each year are certainly an underestimate, Mrs. Adams submitted for the record a report from Public Citizen which estimates that between 600 and 2,000 workers die from heat-related illness in the US every year.
Then she told the story of Wednesday Johnson.
She closed by urging “everyone in this room, go outside and stack boxes on Independence Avenue for a few hours without water and without shade and come back after you’re done and tell me how you feel about the heat standard.”
Rep. Adams urged “everyone in this room, go outside and stack boxes on Independence Avenue for a few hours without water and without shade and come back after you’re done and tell me how you feel about the heat standard.”
Rep. Greg Casar (D-TX) went after Messmer, asking him why, when even many businesses support some type of heat requirements, those in Congress “being paid six figures to work inside, feel the need to kill these kinds of basic worker protections.
Messmer’s only response was “It’s already required under the General Duty Clause.”
Casar then flummoxed Messmer by asking “is there reason for there to be any OSHA rules then if you think the general duty clause just applies clearly to everything?”
Clearly thrown off guard by Casar’s question, Messmer was only able to respond “Uh, that’s not an appropriate question.”
Casar also went after Messmer’s statement that “we’re trying to address a problem that doesn’t exist” by describing the brutal recent heat-related deaths of three Texans. Asked if it isn’t problem if employers don’t give workers a water break, Messmer again mumbled something about that already being a violation of the General Duty Clause.
Well, if the General Duty Clause already requires employers to give workers water breaks, why are we passing a law that would forbid it? Messmer responded that the bill simply required “congressional authority” for a future OSHA heat standard, a requirement that appears nowhere in his legislation.
The Great and Powerful General Duty Clause
So, what is this all-powerful General Duty Clause that Messmer sees as the solution to all heat-related problems?
The General Duty Clause (GDC) is Paragraph 5(a)(1) of the Occupational Safety and Health Act. It simply states that “Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
OSHA uses the General Duty Clause in cases where there is no OSHA standard that applies to a specific hazard. To sustain a General Duty Clause violation, OSHA must show that an employee is exposed to a serious, recognized hazard and that there is a “feasible means of abatement,” which means there is a workable way that the employer can eliminate or significantly reduce the hazard. “Recognized” means recognized either by the employer, or by the relevant industry. (For example, an employer would have a hard time claiming that working in 105 degree heat without water is not a “recognized” hazard.)
The General Duty Clause is not used as a preventive tool. Although theoretically, the GDC can be used any time a worker is exposed to a serious hazard for which there is no standard, in practice, it is almost exclusively used after an worker has been injured or killed.
And the GDC is not used as a preventive tool. Although theoretically, the GDC can be used any time a worker is exposed to a serious hazard for which there is no standard, in practice, it is almost exclusively used after an worker has been injured or killed.
The other problem with relying exclusively on the General Duty Clause to protect workers is that it doesn’t detail what must be done to protect workers; that’s left up to employers to figure out. If a worker is injured or killed by a hazard not covered by OSHA, OSHA may issue a GDC violation if all of the factors above are satisfied, but even then, OSHA can only give employers a list of abatement measures rather than requiring specific actions.
Finally, unlike normal serious violations of a standard, GDC violations must be reviewed by DOL lawyers and approved by the Regional Office.
General Duty Clause: Love it or Hate It. Or Both
For employers these days, the GDC is not something you love or hate; it’s something you love and hate.
If you listened to the business community in last year’s OSHA regulatory hearings on the heat standard, or to Mr. Messmer today, you’d think the GDC was the panacea. No OSHA heat standard is needed because the GDC is already out there, successfully forcing employers to protect workers from heat-related hazards and citing those who don’t.
But today’s miracle solution is yesterday’s misuse of the law. When OSHA actually cites an employer using the General Duty Clause, businesses and their associations are all over it, contesting the violation and condemning the agency for citing employers for unknown hazards instead of issuing a standard. As I explained in Congressional testimony last year,
So the other day, according to the Chamber, OSHA was misusing the General Duty Clause, arguing that a standard should be issued instead. But today, faced with an actual standard, only the General Duty clause will suffice. We don’t need a standard.
Even the Republican-controlled Occupational Safety and Health Review Commission (OSHRC) agreed a few years back that standards are better than reliance on the General Duty Clause. In 2015, OSHRC overturned an OSHA citation against Sturgill Roofing after one of their employees died of heat stroke. OSHRC found that OSHA had failed to establish the existence of an excessive heat hazard.
But the OSHRC members were also not happy with OSHA’s frequent use of the General Duty Clause instead of issuing a standard, because during the standard-setting process (as opposed to a General Duty Clause violation), “interested parties have the opportunity to be heard, and a rule gives employers notice of what they must do to provide safe and healthful workplaces.”
The Commission stated that the “failure to establish the existence of an excessive heat hazard here illustrates the difficulty in addressing this issue in the absence of an OSHA standard.”
The OSHRC majority found that the General Duty Clause “seems to have increasingly become more of a “gotcha” and “catch all” for the agency to utilize, which as a practical matter often leaves employers confused as to what is required of them. [emphasis added]
In other words, according to OSHRC, OSHA should get busy and issue a heat standard.
The Burden of the General Duty Clause
But that’s all legal theory. The reality is that using the General Duty Clause is not just legally risk, but it’s also extremely burdensome for OSHA enforcement staff and lawyers. It’s kind of like going through a mini standard-setting process for each General Duty Clause citation.
I’ll explain.
When OSHA proposes a standard, they back it up with years of work and hundreds of pages of scientific evidence, supported by real-world experience. After extensive and lengthy public comment and hearings, a standard is finally issued, explaining in specific detail exactly what an employer must do to be in compliance and protect their workers. Educational materials are produced for workers and employers, and a Compliance Directive is published explaining to OSHA inspectors (and interested employees and workers) exactly how the standard should be enforced.
That all makes the OSHA inspector’s job is then (relatively) easy. The employer is — or is not — in compliance with clear, specific requirements detailed in each paragraph of the standard.
In the case of heat, that would mean temperature thresholds, the amount of water, rest and shade needed — and its accessibility. A standard would include what needs to be included in a heat program and training. It would detail what an emergency response plan must include, etc, etc.
The General Duty Clause, on the other hand, requires OSHA to determine for every case whether there a hazard exists, defending on what the temperature and humidity happen to be at any given moment, how much water must be supplied, where it must be located — and on and on.
And as we saw in the Sturgill, these determinations are vulnerable to being overturned. The OSHRC majority argued that OSHA had failed to use a reliable source to establish that there were hazardous heat conditions that day, or prove that the worker has “prolonged exposure” or that the worker was engaged in “strenuous” work. Or that heat illness was “likely” vs. “possible.” The fact that the worker had “pre-existing medical conditions” was also used to dismiss the citation.
I could go on and on, but the point here is that the burden of successfully issuing a GDC violation is far greater and far more confusing for employers than simply citing a standard.
Now, I’m not arguing that an OSHA standard should be issued just to make life easier for OSHA inspectors and DOL lawyers. But I am arguing that standards should be written to make it easier to protect workers. Standards do that. The General Duty Clause does not.
OSHA currently has fewer inspectors than any time in its history. General Duty Clause cases are lengthy, time-consuming and resource intensive. Given OSHA’s severe resource constraints, hard decisions must be made about whether to pursue a difficult GDC case, at the expense of faster cases focused on violations of standards.
If it’s difficult (or sometimes not possible) to use the General Duty Clause to cite an employer for exposing workers to known hazards, then workers aren’t being adequately protected. Enforcement delayed is often life denied.
And if it’s difficult (or sometimes not possible) to use the General Duty Clause to cite an employer for exposing workers to known hazards, then workers aren’t being adequately protected. Enforcement delayed is often life denied.
Also, as I mentioned above, unlike citing violations of a standard, General Duty Clause violations are almost always issued after a worker is injured or killed. But violations of a standard can easily be issued before a worker is injured or killed.
Finally, standards are better for employers — especially small employers — than the General Duty Clause. If you were a small employer, would you be more comfortable with a list of specific requirements (as in a standard), or the rather vague requirement to keep your workplace “free from recognized hazards” requiring you to do the research to determine what constitutes a heat hazard, whether your workers are exposed, and what can be done to abate that hazard.
Most employers, if given the honest option, would choose a roadmap with specific turn-by-turn directions rather than a general direction to “head west” and figure it out.
Conclusion
This has been a rather long and technical rant. But the clear message is: The General Duty Clause is not an adequate substitute for a strong OSHA heat standard. Republican attempts to make it so are nothing more than a thinly veiled attempt to relieve businesses of their legal responsibility to protect their workers.
Remember that on November 3rd.