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By Steve Wishnia

Worker-safety advocates hailed the proposed federal heat-protection standards released by the Occupational Safety and Health Administration July 2—but they also warn that they must be adequately enforced.

“It couldn’t have come a moment too soon,” Marcy Goldstein-Gelb, co-executive director of the National Council for Occupational Safety and Health, told Work-Bites, adding that the proposed rules will protect “untold numbers” of workers.

“I’m very excited, because we’ve been working on this for a long time,” says Jeannie Economos, health and safety project coordinator for the Farmworkers Association of Florida. “We’re really glad the Biden administration is doing this. It’s long overdue.”

But that excitement comes with a caveat: “Having a rule is one thing. Having it complied with and enforced is another.”

The rules

The proposed rules would require employers to develop a plan to prevent injuries and illnesses from excessive heat. If approved, they would be the first ever federal regulations protecting workers from excessive heat, and would supersede the Texas and Florida laws that prohibit local governments from setting heat-safety standards.

Basic requirements, such as access to “suitably cool” drinking water and indoor break rooms, would be triggered when the “heat index,” a combination of temperature and high humidity, reaches 80°F, according to OSHA. When it exceeds 90° (such as a temperature of 84° with over 70% humidity), employers would have to give workers 15-minute rest breaks every two hours and observe them for signs of heat illness.

The Department of Labor estimates the rule would protect 36 million workers. It says that on average, 40 workers per year die from exposure to environmental heat, and almost 3,000 are affected badly enough to miss days of work—and that these statistics “are likely vast underestimates.”

Other provisions would require employers to post warning signs in areas where the temperature exceeds 120°; to train workers and supervisors about heat hazards; and to limit exposure for new or returning employees so they can “reacclimatize.” For outdoor workers, a shady place for breaks could be either natural, like under a tree, or artificial, like a tent—but it can’t be merely in the shadow of equipment.

The proposal has “absolutely important components,” says Goldstein-Gelb, including that workers must have a role in developing a plan, covering both indoor and outdoor workers, acclimatization, and training workers and supervisors to recognize symptoms of heat illnesses.

Enforcement

OSHA, however, is “vastly under-resourced,” says Goldstein-Gelb.

Together with state occupational-safety agencies, it has approximately 1,850 inspectors to cover more than 8 million worksites with 130 million workers. That, the agency says, translates to about one compliance officer for every 70,000 workers. It performed 34,267 inspections in the 2023 fiscal year.

“The reality is very stark for farmworkers,” says Economos. Their employers have been required to provide proper sanitation for decades, but many farmworkers still don’t have drinking water or a place to wash their hands.

Workers in the ornamental-plant greenhouses and nurseries common in the rural areas near Orlando where the Farmworkers Association of Florida is based, she explains, report that employers won’t refill water-cooler jugs if they run out late in the week. Others say there are no toilets at their job, so they have to go to nearby convenience stores. And when there is water, some are reluctant to drink it, because their boss will yell at them for taking bathroom breaks.

Many farm and nursery workers are either undocumented immigrants or H-2A guest workers, so they are afraid of being deported if they fight for their rights, and there is also a language barrier. The Farmworkers Association, Economos says, is working on an informational campaign to be broadcast on Spanish-language and Haitian Creole radio stations.

The Florida law pre-empting local heat regulations, which went into effect July 1 after Gov. Ron DeSantis signed it in April, even bars local governments from requiring employers to give workers information about heat safety, she notes.

“It’s outrageous for there not to be protections already,” says Economos. “The faster they’re set up, the better.”

What next?

Once the rule is published in the Federal Register, probably within the next week, there will be a period for public comments, typically 30 to 60 days. “We have lots of stories from farmworkers,” Economos says.

After receiving the comments, OSHA will draft a final rule, which could take anywhere from a couple months to years.

“Our focus is to move it to the finish line as fast as possible,” says Goldstein-Gelb, as well as preventing it from being watered down.

Employer groups might also challenge heat regulations in court. They would be enabled by the Supreme Court’s June 28 decision in Loper Bright v. Raimondo, which overturned the 1984 “Chevron deference” precedent that courts should accept federal agencies’ interpretations of laws as long as they’re reasonable. That deference meant the courts presuming, for example, that OSHA had the expertise to determine what temperature levels are hazardous.

However, on July 2, the Court refused to consider a case challenging OSHA’s existence. Former Trump White House counsel Donald F. McGahn, backed by far-right litigation groups and the attorney generals of 23 states, argued that Congress had unconstitutionally delegated its authority when it gave the agency power to set “reasonably necessary or appropriate” workplace-safety standards. Justices Clarence Thomas and Neil Gorsuch dissented.

The rule would also be vulnerable if a president opposed to it is elected.

“To say the least, as temperatures rise and the climate changes, these protections are long overdue,” the Texas AFL-CIO said in its daily email July 2. “Oh, and by the way, elections matter: Because this is an administrative rule, it can be overturned, as it surely would be, if Donald Trump gets back in the White House.”