[House Report 117-547]
[From the U.S. Government Publishing Office]
117th Congress} { Report
2d Session } HOUSE OF REPRESENTATIVES { 117-547
======================================================================
ASUNCION VALDIVIA HEAT ILLNESS AND FATALITY
PREVENTION ACT OF 2022
_______
November 7, 2022.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Scott of Virginia, from the Committee on Education and Labor,
submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany H.R. 2193]
[Including cost estimate of the Congressional Budget Office]
The Committee on Education and Labor, to whom was referred
the bill (H.R. 2193) to direct the Occupational Safety and
Health Administration to issue an occupational safety and
health standard to protect workers from heat-related injuries
and illnesses, having considered the same, reports favorably
thereon with an amendment and recommends that the bill as
amended do pass.
CONTENTS
Page
Purpose and Summary.............................................. 6
Committee Action................................................. 8
Committee Views.................................................. 10
Section-by-Section Analysis...................................... 43
Explanation of Amendments........................................ 45
Application of Law to the Legislative Branch..................... 46
Unfunded Mandate Statement....................................... 46
Earmark Statement................................................ 46
Roll Call Votes.................................................. 46
Statement of Performance Goals and Objectives.................... 49
Duplication of Federal Programs.................................. 49
Hearings......................................................... 49
Statement of Oversight Findings and Recommendations of the
Committee...................................................... 49
New Budget Authority and CBO Cost Estimate....................... 49
Committee Cost Estimate.......................................... 51
Changes in Existing Law Made by the Bill, as Reported............ 53
Minority Views................................................... 52
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Asuncion Valdivia Heat Illness and
Fatality Prevention Act of 2022''.
SEC. 2. EMPLOYER DUTIES.
Each employer shall--
(1) furnish employment and a place of employment free from
conditions that may reasonably be anticipated to cause death or
serious physical harm from heat stress; and
(2) comply with standards, regulations, rules, and orders
promulgated under this Act.
SEC. 3. WORKER HEAT PROTECTION STANDARDS.
(a) Design of Standards.--
(1) In general.--The Secretary shall promulgate a worker heat
protection standard that, in accordance with the best available
evidence, establishes the maximum protective program of
measures an employer shall implement to regulate employees'
exposure to heat stress and prevent heat-related illness and
injury that attains the highest degree of health and safety
protection to the extent feasible.
(2) Considerations.--
(A) Demonstrably achievable measures.--The Secretary
may presume that any requirement substantially
equivalent to a requirement adopted by a State plan
approved by the Occupational Safety and Health
Administration pursuant to section 18(c) of the
Occupational Safety and Health Act of 1970 (29 U.S.C.
667(c)) and that has been in effect for at least 1 year
is feasible.
(B) Prioritizing worker protection.--In weighing any
considerations during rulemaking, the Secretary shall
place preeminent value on assuring employees a safe and
healthful working environment.
(C) Available expertise.--If the Secretary adopts any
finding or recommendation by the Institute, the
American Conference of Governmental Industrial
Hygienists, or the National Academies of Sciences,
Engineering, and Medicine relevant to heat stress in a
rulemaking pursuant to this Act, such finding or
recommendation shall be considered the best available
evidence.
(D) Employer categories.--The Secretary may, in any
rulemaking analysis or design of standards, cluster
relevant employers in any categories such as standard
industry or occupational classifications or any common
or related features of heat sources, conditions of
employment, employer practices, employee
characteristics, or nature of place of employment that,
in the Secretary's reasonable determination, are useful
for designing an effective and practicable program of
standards, regulations, and enforcement that maximizes
the health and safety of employees.
(3) Protective programs.--
(A) In general.--In addition to measures specified by
this Act, the Secretary may develop a worker heat
protection standard with such additional requirements
that, in the Secretary's reasonable judgment, are
necessary or appropriate to achieve the purposes of
this Act. Such measures may include the following:
(i) Engineering controls.--Requirements to
eliminate hazardous levels of heat stress
through engineering controls, such as isolation
or shielding of employees from sources of heat,
exhaust ventilation, insulation of hot
surfaces, or climate-control technologies, as
well as technology-based standards that
encourage the development of such controls.
(ii) Administrative controls.--Requirements
to limit exposure to hazardous levels of heat
stress by adjustment of work procedures, work
schedules, or other work practices.
(iii) Personal protective equipment.--
Requirements to provide, at the employer's
expense, personal protective equipment such as
water-cooled garments, air-cooled garments,
heat-reflective clothing, and cooling vests.
(iv) Health-related protocols.--Requirements
to conduct medical symptom monitoring,
emergency response protocols, medical removal
protection, or training of employees and
supervisors in recognition of symptoms of heat-
related illness and appropriate responses.
(v) Training requirements.--Requirements to
train employees and supervisors in topics
reasonable or necessary to achieve the
implementation of the requirements of a
standard or the purposes of this Act,
including--
(I) training of employees in signs
and symptoms of heat-related illness,
emergency response procedures, and
their rights under this Act; and
(II) training of supervisors in
monitoring heat conditions and
environmental forecasts, recognizing
signs of heat-related illness, and
protocols for responding to likely
heat-related illness.
(vi) Planning requirements.--Requirements for
a heat illness and injury prevention plan
that--
(I) is of sufficient quality to
effectuate the purposes of this Act and
to effectuate the requirements of the
standard that apply to the employer;
(II) is developed, updated, and
implemented with the meaningful
participation of the employer's
employees and, where applicable, such
employees' representatives, for all
aspects of the plan;
(III) is produced and maintained in
writing and updated in light of
changing conditions or practices; and
(IV) is made available, upon request,
to any employee, the employee's
representative, and the Secretary.
(vii) Standard health and safety measures.--
Any measures described in section 6(B)(7) of
the Occupational Safety and Health Act of 1970
(29 USC 655(B)(7)).
(B) Innovative solutions.--As the relevant scientific
evidence develops, technological solutions improve, and
environmental conditions or new work practices
aggravate the risk of heat-related illness or injury,
the Secretary may modify, supplement, or revise a
worker heat protection standard by rule in order to
improve such standard in light of such changes, even if
it departs from long-standing past practice, provided
that the resulting standard is consistent with this
Act.
(C) Core practices.--The Secretary shall establish
criteria under which an employer who exposes or may
reasonably be anticipated to expose an employee to heat
or heat stress that is not reduced below hazardous
levels by engineering controls or personal protective
equipment shall implement a reasonable program that
includes--
(i) suitably cool potable water or
appropriate hydration, provided at employer
expense;
(ii) periodic paid rest breaks scheduled to
reduce heat stress below hazardous levels;
(iii) access to shade or suitable cool-down
spaces;
(iv) acclimatization policies; and
(v) such measures that are necessary or
appropriate to ensure effective implementation
of the requirements of this subparagraph.
(4) Other specifications.--
(A) Protection of pay.--The Secretary shall require
that, for any required duration such as rest breaks,
medical removal protection, and training, an employee
shall receive compensation at the regular rate at which
such employee is employed.
(B) Language access.--Any required training, poster,
label, hazard alert, or written plan shall be provided
in English and a language understood by the employees,
if such is not English, and prepared appropriately for
the vocabulary, educational level, and literacy of the
employees.
(C) Temporary labor camps.--The Secretary shall
revise the Secretary's standard for temporary labor
camps to the extent necessary to achieve the purposes
of this Act.
(5) Maintaining protection.--No worker heat protection
standard promulgated under this Act may reduce the protection
afforded employees by an existing worker heat protection
standard.
(b) Initial Standards.--Not later than the date that is 1 year after
the date of enactment of this Act, the Secretary shall promulgate,
without regard to the requirements of chapters 5 and 6 of title 5,
United States Code, subchapter I of chapter 35 of title 44, United
States Code (commonly known as the ``Paperwork Reduction Act''), or the
National Environmental Policy Act of 1969 (42 U.S.C. 431 et seq.), an
interim final rule establishing a worker heat protection standard and
related recordkeeping and reporting requirements. Such rule shall take
effect upon issuance (except that it may include a reasonable delay in
the effective date), shall have the legal effect of an occupational
safety and health standard as defined by section 3(8) of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 652(8)), and
shall remain in effect until superseded by a final rule promulgated
pursuant to this Act.
(c) Rulemaking Procedures.--For any rulemaking pursuant to this Act
after publication of the initial final rule in subsection (b), the
following procedures shall apply:
(1) In general.--The Secretary shall, upon a showing by a
petitioner pursuant to paragraph (2) or the Secretary's own
determination that a worker heat protection standard is
necessary or appropriate to regulate employees' exposure to
conditions known to cause or that may reasonably be anticipated
to cause heat-related illness or injury, promulgate any worker
heat protection standard in accordance with the policies set
forth in this section and in accordance with section 553 of
title 5, United States Code (without regard to any reference in
such section to sections 556 and 557 of such title).
(2) Petitions for rulemaking.--Any person may petition the
Secretary to promulgate or modify a worker heat protection
standard. Within 18 months after receipt of a petition, the
Secretary shall either grant or deny the petition by publishing
a written explanation of the reasons for the Secretary's
decision. The Secretary may not deny a petition solely on the
basis of inadequate resources or insufficient time for review.
(3) Timelines.--Except as otherwise provided in subsection
(b), the Secretary shall observe the following schedule for
rulemaking:
(A) Proposed standards.--Within one year after
granting a petition for rulemaking under paragraph (2),
the Secretary shall publish a proposed worker heat
protection standard consistent with this section.
(B) Final standards.--The Secretary shall promulgate,
within one year after such publication, such standards
with such modifications as the Secretary deems
appropriate.
(C) Effect.--Standards or revisions thereof shall
become effective upon promulgation, except that the
Secretary may include a reasonable delay in the
effective date.
(4) Transparency in rulemaking.--For any rulemaking notice
pursuant to this Act, the Secretary shall place in the public
record not later than the date of such rulemaking notice the
following:
(A) The drafts of such rulemakings prepared before
publication and submitted by the Secretary to the
Office of Management and Budget for any interagency
review process prior to publication, all documents
accompanying such drafts, all written comments thereon
by other agencies, and all written responses to such
written comments by the Secretary.
(B) A summary of the substance of any changes between
the text of the draft rulemaking that the agency
provided to the Office of Management and Budget under
section 6(a)(3)(B)(i) of Executive Order 12,866 and the
text published in the Federal Register, excluding any
non-substantive changes such as spelling or grammatical
corrections or re-ordering of text that has no legal
effect.
(C) A statement identifying any party or entity at
whose request any such change was made.
(5) Judicial review.--
(A) Filing of petition.--A petition for review in
accordance with section 702 of title 5, United States
Code, of action of the Secretary in promulgating any
worker heat protection standard or any other nationally
applicable regulation or final action taken by the
Secretary pursuant to this Act may be filed only in the
United States Court of Appeals for the District of
Columbia. The filing of a petition for review shall not
postpone the effectiveness of such rule or action.
(B) Timely filing.--Any petition for review under
this paragraph shall be filed within sixty days from
the date notice of such promulgation, approval, or
action appears in the Federal Register.
(C) Not subject to review.--Action of the Secretary
with respect to which review could have been obtained
under this paragraph shall not be subject to judicial
review in civil or criminal proceedings for
enforcement. Failure to promulgate any standard
pursuant to the schedule established by this section
shall be subject to review.
SEC. 4. IMPLEMENTATION AND ENFORCEMENT.
(a) In General.--Except as otherwise provided by this section--
(1) a worker heat protection standard shall have the same
legal effect as an occupational safety and health standard as
defined by section 3(8) of the Occupational Safety and Health
Act of 1970 (29 U.S.C. 652(8)); and
(2) any rule, regulation, or order promulgated pursuant to
this Act shall have the same legal effect as a rule,
regulation, or order promulgated pursuant to the Occupational
Safety and Health Act of 1970 (29 U.S.C. 651 et seq.).
(b) Enforcement.--
(1) Statute of limitations for citation.--No citation for any
violation of section 2 or any standard, rule, regulation, or
order pursuant to this Act may be issued under this section
after the expiration of four years following the occurrence of
any violation.
(2) Review.--The Commission shall grant substantial deference
to any reasonable interpretation by the Secretary of this Act
or any standard, regulation, or order pursuant to this Act.
(c) Recordkeeping and Reporting.--
(1) In general.--With regard to recordkeeping and reporting,
the Secretary and Secretary of Health and Human Services shall
have the same authority to prescribe regulations related to
this Act as under section 8 of the Occupational Safety and
Health Act (29 U.S.C. 657).
(2) Consolidating requirements.--The Secretary may
incorporate recordkeeping and reporting requirements under this
section into existing recordkeeping and reporting requirements
promulgated pursuant to section 8 of the Occupational Safety
and Health Act (29 U.S.C. 657), provided that a violation of
such a requirement with regard to implementation of this Act
shall be enforced as a distinct violation separate and apart
from any other simultaneous violation of a requirement pursuant
to the Occupational Safety and Health Act.
(d) Whistleblower Protections.--
(1) Complaint.--Any employee who believes that such employee
has been discharged or otherwise discriminated against by any
person in violation of section 11(c)(1) of the Occupational
Safety and Health Act (29 U.S.C. 660(c)(1)) with regard to any
matter under or related to this Act may, within 180 days after
such violation occurs, file a complaint with the Secretary
following the procedures in paragraph (2) of such section
alleging such discrimination.
(2) Action.--If the Secretary fails to notify the complainant
of the Secretary's determination on the complaint within 90
days pursuant to section 11(c)(3) of the Occupational Safety
and Health Act (29 U.S.C. 660(c)(3)) or determines not to bring
an action pursuant to paragraph (2) of such section, such
employee may bring an action in any appropriate United States
district court against such person for all appropriate relief
in accordance with paragraph (2) of such section as well as
reasonable attorney's fees and costs.
SEC. 5. GENERAL PROVISIONS.
(a) Severability.--If any provision of this Act is held invalid, the
remainder of this Act shall not be affected thereby. If the application
of any provision of this Act to any person or circumstance is held
invalid, the application of such provision to other persons or
circumstances shall not be affected thereby.
(b) Authorization of Appropriations.--There are authorized to be
appropriated from sums not otherwise appropriated, for each fiscal
year, such sums as may be necessary to carry out this Act.
SEC. 6. AGENDA FOR FURTHER REVIEW AND ACTION.
The Secretary shall update the National Agricultural Workers Survey
with such questions that, in the Secretary's judgment, are useful to
identify the incidence and prevalence of heat-related illness and
injury and assess the impact of standards and enforcement pursuant to
this Act. Within one year of the date of enactment of this Act, the
Secretary shall submit to the Committee on Education and Labor of the
House of Representatives and the Committee on Health, Education, Labor,
and Pensions of the Senate a report on the Secretary's implementation
of this subsection.
SEC. 7. DEFINITIONS.
For purposes of this Act:
(1) The term ``Commission'' means the Occupational Safety and
Health Review Commission.
(2) The term ``employee'' has the same meaning as in section
3(6) of the Occupational Safety and Health Act of 1970 (29
U.S.C. 652(6)).
(3) The term ``employer'' has the same meaning as in section
3(5) of the Occupational Safety and Health Act of 1970 (29
U.S.C. 652(5)).
(4) The term ``heat stress'' means the load of heat that a
person experiences due to--
(A) sources of heat or heat retention (including the
combined contributions of metabolic heat, environmental
factors, and clothing or personal protective
equipment); or
(B) the presence of heat in a work setting.
(5) The term ``heat-related illness'' means a material
impairment of health that occurs due to heat stress.
(6) The term ``heat-related injury'' means an injury caused
by exposure to heat or sources of heat or occurring as a result
of heat stress.
(7) The term ``Institute'' means the National Institute for
Occupational Safety and Health.
(8) The term ``Secretary'' means the Secretary of Labor.
(9) The term ``worker heat protection standard'' means a
standard that regulates employee exposure to heat stress and
prevents heat-related illness and injury by requiring
conditions or the adoption or use of one or more practices,
means, methods, operations, or processes reasonably necessary
or appropriate to provide employment and places of employment
that are safe or healthful.
PURPOSE AND SUMMARY
The purpose of H.R. 2193, the Asuncion Valdivia Heat
Illness and Fatality Prevention Act (Act),\1\ is to protect
workers from illness, injury, and fatality risks caused by heat
stress. It does so by clarifying employers' duties to protect
employees from heat stress and directing the Secretary of Labor
(Secretary) to initiate rulemaking that would regulate
employees' exposure to heat stress. It establishes the scope of
rulemaking authority on occupational heat stress, mandates
promulgation of an interim final rule within one year, and sets
procedures for subsequent rulemakings as heat hazards increase
or science evolves over time. It enables meaningful enforcement
and implementation of heat stress standards, and it requires
the Secretary to survey farmworkers in order to track the
incidence of heat-related illness and injury and the
effectiveness of the Act.
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\1\Here and throughout the legislative history, we are correcting
the bill title to reflect that the person for whom the bill was named
spelled his first name with a diacritical mark over the o in Asuncion.
As explained later, the Amendment in the Nature of a Substitute for
H.R. 2193 amended the short title of the Act to reflect the correct
spelling.
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H.R. 2193 has been endorsed by the AFL-CIO; Alianza
Nacional de Campesinas, Inc.; Alliance of Nurses for Healthy
Environments; American College of Occupational and
Environmental Medicine; American Federation of State, County &
Municipal Employees (AFSCME); American Indian Mothers, Inc.;
American Industrial Hygiene Association; American Postal
Workers Union, AFL-CIO; American Public Health Association;
American Sustainable Business Council; Amity Foundation; Asian
Pacific American Labor Alliance, AFL-CIO; Association of
Farmworker Opportunity Programs; Association of Occupational
and Environmental Clinics; Association of Western Pulp and
Paper Workers; Beyond Toxics; Broome Tioga Green Party;
Cannabis Workers Coalition; Catholic Labor Network; Catskill
Mountainkeeper; CATA-E1 Comite de Apoyo a los Trabajadores
Agricolas; Center for Biological Diversity; Center for Health,
Work and Environment; Center for Progressive Reform; Central
Florida Jobs with Justice; Centro de los Derechos del Migrante,
Inc.; Child Labor Coalition; Climate Health Now; Climate Jobs
PDX; Climate Psychiatry Alliance; Climate Psychiatry Alliance-
Early Career Network; Climate Solutions; Climate Tucson;
College of Veterinary Medicine and Biomedical Sciences,
Colorado State University; Communications Workers of America
(CWA); Concentra; Connecticut Council for Occupational Safety
and Health; Courage California; CrearConSalud; CRLA Foundation;
Department of Environmental and Radiological Health Sciences,
Colorado State University; Disciples Refugee & Immigration
Ministries; Earthjustice; Employee Rights Center; Episcopal
Farmworker Ministry; Erotic Service Providers Union; Farm
Worker Ministry Northwest; Farmworker Association of Florida;
Farmworker Justice; Farmworker Association of Florida;
Farmworker Justice; Farmworker's Self-Help; Fayetteville Police
Accountability Community Taskforce; Florida Center for Fiscal &
Economic Policy; Florida Immigrant Coalition; Florida People's
Advocacy Center; Food & Water Watch; Food Chain Workers
Alliance; Friends of the Earth US; Garment Worker Center;
Government Accountability Project; Greater New York Labor
Religion Coalition; HEAL (Health, Environment, Agriculture,
Labor) Food Alliance; Healthy Work Campaign--Center for Social
Epidemiology; Healthy Workplaces; HeumannHealth Consulting;
High Plains Intermountain Center for Agricultural Health and
Safety; Honesty Home Care; Human Rights Watch; Ilana Slaff
Medical PLLC; Institute for Agriculture and Trade Policy;
Interfaith Worker Justice; International Association of
Machinists and Aerospace Workers; International Brotherhood of
Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers &
Helpers; International Brotherhood of Teamsters; International
Chemical Workers Union Council (ICWUC); International Safety
Equipment Association (ISEA); International Union, United
Automobile, Aerospace and Agricultural Implement Workers of
America (UAW); IUE-CWA; Jersey Renews Coalition; Justice at
Work; Justice at Work Pennsylvania; Justice for Black Farmers;
Justice for Migrant Women; Korey Stringer Institute; La Isla
Network; La Union Del Pueblo Entero; Labor Education Program,
University of Massachusetts Lowell; Legal Aid Justice Center;
Lomakatsi Restoration Project; MassCOSH (Massachusetts
Coalition for Occupational Safety & Health); Methodist
Federation for Social Action; Michigan Postal Workers Union;
Mississippi Workers' Center for Human Rights; National
Consumers League; National Council for Occupational Safety and
Health; National Day Laborer Organizing Network; National
Employment Law Project; National Farm Worker Ministry; Natural
Resources Defense Council; New Mexico Center on Law and
Poverty; Northeast Organic Farming Association--New Hampshire;
Northeast Organic Farming Association--New York (NOFA-NY);
Northeast Organic Farming Association of Vermont; Northwest
Center for Alternatives to Pesticides; Northwest Workers'
Justice Project; OLE (Organizers in the Land of Enchantment);
Oregon Climate and Agriculture Network; Oregon Environmental
Council; Oregon League of Conservation Voters; Philaposh;
Physicians for Social Responsibility, Arizona Chapter; Pineros
y Campesinos Unidos del Noroeste; Progressive Democrats of
America; Progressive Democrats of America, Tucson Chapter;
Public Citizen; Public Justice; Puerto Rico Clinicians for
Climate Action; Refugee Women's Network; Retail, Wholesale and
Department Store Union (RWDSU); OLE (Organizers in the Land of
Enchantment); RI Committee on Occupational Safety and Health;
SafeWork Washington; San Francisco Bay Physicians for Social
Responsibility; Service Employees International Union (SEIU);
Sisters of Charity, BVM; Sisters of Charity of Nazareth
Congregational Leadership; Sisters of Charity of Nazareth
Western Province Leadership; Sisters of the Humility of Mary;
Solstice Market NYC; Student Action with Farmworkers; Sur Legal
Collaborative; Toxic Free North Carolina; Transport Workers
Union Local 555; Union of Concerned Scientists; United for
Respect; United Church of Christ, Justice and Local Church
Ministries; United Farm Workers; United Farm Workers Foundation
(UFWF); United Food and Commercial Workers International Union;
United Scenic Artists Local USA 829, IATSE; United Steelworkers
International Union; USDA Coalition of Minority Employees;
Utility Workers Union of America; Virginia Clinicians for
Climate Action; WeCount!; Whistleblowers of America; Western
New York Council on Occupational Safety and Health (WNYCOSH);
Women's Voices for the Earth; and Worksafe.
COMMITTEE ACTION
103RD CONGRESS
On March 2, 1993, Rep. George Miller (D-CA-07) introduced
H.R. 1173, the Agricultural Worker Protection Reform Act of
1993, which would have, among other things, required
agricultural employers to protect employees from heat stress.
The bill was referred to the Committee on Education and Labor
(Committee). The bill had 16 Democratic cosponsors.
On September 15, 1993, the Committee's Subcommittee on
Labor Standards, Occupational Health and Safety held a hearing
entitled ``Hearing on H.R. 1173 and H.R. 1999'' (1993 Hearing).
Among the 14 witnesses, three mentioned issues related to heat
illness and the requirement in H.R. 1173 for a heat stress
standard: Ms. Ellen Braff-Guajardo, Attorney, California Rural
Legal Assistance, Fresno, CA; Mr. Douglas W. Mosber, Vice
President, California Farm Bureau Federation, Sacramento, CA;
and Mr. Mark Schact, Attorney, California Rural Legal
Assistance, Sacramento, CA. No further action was taken on the
legislation.
116TH CONGRESS
On July 10, 2019, Rep. Judy Chu (D-CA-27) introduced H.R.
3668, the Asuncion Valdivia Heat Illness and Fatality
Prevention Act of 2019. The bill would have directed the
Secretary to promulgate a standard on prevention of exposure to
excessive heat. The bill was referred to the Committee. The
bill had 79 Democratic cosponsors.
On July 11, 2019, the Committee's Subcommittee on Workforce
Protections held a hearing entitled ``From the Fields to the
Factories: Preventing Workplace Injury and Death from Excessive
Heat'' (2019 Hearing). The hearing assessed the severity of
heat-related illness in outdoor and indoor workplaces and the
necessity for worker protections. Witnesses for the hearing
were: Mr. Thomas E. Bernard, Ph.D., Professor, College of
Public Health, University of South Florida, Tampa, FL; Mr.
Javier Rodriguez, Warehouse Worker, Worker Resource Center,
Ontario, CA; Mr. Kevin Cannon, Senior Director of Safety and
Health Services, Associated General Contractors of America,
Arlington, VA; Ms. Ronda McCarthy, MD, MPH, National Medical
Director, Medical Surveillance Services, Concentra, Waco, TX;
Mr. Bryan Little, Director of Labor Affairs, California Farm
Bureau Federation, Sacramento, CA; and Mr. Arturo Rodriguez,
Former President, United Farm Workers, San Antonio, TX.
On October 1, 2020, Sen. Kamala Harris (D-CA) introduced a
companion bill, S. 4781, the Asuncion Valdivia Heat Illness and
Fatality Prevention Act of 2020. The bill was referred to the
Committee on Health, Education, Labor, and Pensions (HELP
Committee). The bill had five Democratic cosponsors. No further
action was taken on the legislation.
117TH CONGRESS
On March 26, 2021, Rep. Chu introduced H.R. 2193, the
Asuncion Valdivia Heat Illness and Fatality Prevention Act of
2021. The bill was referred to the Committee. The bill has 112
Democratic cosponsors.
On April 12, 2021, Sen. Sherrod Brown (D-OH) introduced a
companion bill, S. 1068, the Asuncion Valdivia Heat Illness and
Fatality Prevention Act of 2021. The bill was referred to the
HELP Committee. The bill has 15 Democratic cosponsors and one
Independent cosponsor.
The Committee's Subcommittee on Workforce Protections held
a hearing on May 25, 2022, entitled ``Examining the Policies
and Priorities of the Occupational Safety and Health
Administration'' (May 25 Hearing). The witnesses were Mr.
Douglas Parker, Assistant Secretary of Labor for Occupational
Safety and Health, U.S. Department of Labor, Washington, DC,
and Mr. Thomas Costa, Director of Education, Workforce, and
Income Security, Government Accountability Office, Washington,
DC. During this hearing, Assistant Secretary Parker testified
on multiple topics, including the need for a heat standard and
the slowness of the OSHA rulemaking process.
The Committee held a markup of H.R. 2193 on July 27, 2022.
The Committee adopted an Amendment in the Nature of a
Substitute (ANS) offered by Rep. Alma S. Adams (D-NC-12).
The ANS made the following changes:
Revises the short title by adding a missing
accent mark to the name Asuncion and changing the year
to 2022;
Clarifies that employers have an ongoing
general duty to provide jobs free from dangerous heat
stress;
Requires the Secretary to develop a strong
standard on heat stress;
Mandates an interim final rule within one
year and spells out procedures with tight timelines for
any updates to the heat stress standards in the future;
Requires transparency in the rulemaking
docket of comments received and changes made during
rulemaking review by the White House Office of
Management and Budget;
Sets a statute of limitations of four years
for heat-related regulatory violations and 180 days for
heat-related whistleblower retaliation claims, with
additional procedural avenues for retaliation claims;
and
Requires the Secretary to update the
National Agricultural Workers Survey to include
questions useful for tracking heat-related illness and
injury and the effectiveness of this Act.
Three amendments to the ANS were offered:
Rep. Fred Keller (R-PA-12) offered an
amendment to eliminate the provision of the ANS
requiring petitions for judicial review of a standard
to be filed within 60 days of promulgation in the U.S.
Court of Appeals for the District of Columbia. The
amendment failed by a vote of 19 Yeas and 27 Nays.
Rep. Michelle Steel (R-CA-48) offered an
amendment to require the Secretary to convene a small
business review panel before issuing an interim final
rule. The amendment failed by a vote of 19 Yeas and 27
Nays.
Rep. Bob Good (R-VA-5) offered an amendment
to reduce the statute of limitations for regulatory
violations from four years to six months. The amendment
failed by a vote of 19 Yeas and 27 Nays.
H.R. 2193 was reported favorably, as amended, to the House
of Representatives by a vote of 27 Yeas and 19 Nays.
COMMITTEE VIEWS
INTRODUCTION
Millions of American workers are vulnerable to the severe
and often deadly health effects of heat stress. Excessive heat
stress can cause heat-related illnesses such as heat cramps,
organ damage, heat exhaustion, stroke, and even death. Data
from the Bureau of Labor Statistics (BLS) show that, between
1992 and 2017, heat-related illness and injury killed hundreds
of workers in the U.S. and severely injured tens of thousands.
Climate change is intensifying the risk. Although several
states and the U.S. military have policies in place to prevent
heat-related illness and injury, the Occupational Safety and
Health Administration (OSHA) of the U.S. Department of Labor
(DOL) has not issued a workplace health and safety standard on
this hazard to protect workers' lives and wellbeing.
H.R. 2193, the Asuncion Valdivia Heat Illness and Fatality
Prevention Act, would establish an employer's general duty to
provide employment and places of employment free from hazardous
heat stress and prevent heat-related illness and injury; direct
the Secretary of Labor (Secretary) to promulgate a strong
worker heat protection standard within one year; and improve
OSHA governance capacity to enforce the standard and update it
over time.
HEAT STRESS IS A HAZARD TO WORKERS' HEALTH AND SAFETY
When a worker experiences environmental heat and internal
body heat combining to reach levels that overwhelm the capacity
of the body's natural heat-regulating systems, the resulting
heat stress can cause serious illnesses and injuries. The risk
of these heat-related illnesses and injuries is significant
throughout the U.S. workforce, although some populations have a
particularly higher risk.
Heat Stress and Its Effects
The National Institute for Occupational Safety and Health
(NIOSH) defines heat stress as the ``net heat load to which a
worker is exposed from the combined contributions of metabolic
heat, environmental factors, and clothing worn which results in
an increase in heat storage in the body.''\2\ Metabolic heat is
the heat generated in the body by metabolic processes that
convert chemical energy, such as that in food and fat stores,
into the energy required for work and physical exertions.\3\
Environmental factors include ambient heat; direct sunlight,
which can intensify heat above its general ambient measured
level; and humidity, which can interfere with the body's
ability to regulate internal heat. Clothing and personal
protective equipment (PPE) increase the thermal load of
metabolic heat and environmental heat during work.\4\
---------------------------------------------------------------------------
\2\Brenda Jacklitsch et al., Nat'l Inst. for Occ. Safety & Health,
DHHS (NIOSH) Pub. No. 2016-106, NIOSH Criteria for a Recommended
Standard: Occupational Exposure to Heat and Hot Environments xx (rev.
2016) [hereinafter NIOSH Criteria].
\3\Id. at xxi, xxiii, 1.
\4\Id. at 15-22.
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Heat stress becomes hazardous when it exceeds the body's
thermoregulatory capacity. The human body is designed to
operate at a temperature of 98.6 degrees Fahrenheit (98.6+F),
with slight variations. During intense physical work, the
body's temperature will increase; working in the presence of
environmental heat, such as that from a hot summer day or a
furnace, will increase the body's heat even more. The
thermoregulatory system is a set of mechanisms to cool the
body, mainly through perspiration, which is intended to pull
heat out and cool the body from the evaporation of sweat. These
mechanisms can be compromised by heat from the ambient
environment or radiant indoor sources, humidity, low air
velocity, and some types of clothing. The body's
thermoregulatory system also has its own limits, such as
dehydration, and can be overwhelmed in a short amount of time
given sufficient heat, even without exertion. Heat stress
occurs when the heat generated by the body cannot be adequately
dissipated to the ambient environment, causing heat to
accumulate in the body and core body temperature to rise.\5\
---------------------------------------------------------------------------
\5\Id. at 23-58.
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Too high an increase in core temperature leads to a variety
of heat-related illnesses, from heat rashes to heat stroke.
Heat stroke is particularly dangerous. Triggered when the
body's temperature exceeds 105.8+F, heat stroke is
characterized by neurological impairment and an overheating of
tissue that breaks down proteins and can cause liver and kidney
damage.\6\ The longer the body stays above 105.8+F and the
greater the elevation above 105.8+F, the more likely heat
stroke will become fatal.\7\ Even if not fatal, it can cause
permanent damage to the brain, kidneys, and liver.\8\ Time is
of the essence with heat stroke, which can lead to death or
permanent disability if emergency medical treatment is not
provided in time.\9\
---------------------------------------------------------------------------
\6\Heat Stress--Heat Related Illness, Nat'l Inst. for Occ. Safety &
Health, https://www.cdc.gov/niosh/topics/heatstress/heatrelillness.html
(last visited Aug. 1, 2022) [hereinafter Heat Illness Facts].
\7\NIOSH Criteria, supra note 2, at 47-52.
\8\Id. at 52.
\9\Id.
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Although occupational heat stress is most frequently
discussed in terms of hard work in high temperatures, metabolic
heat from overexertion alone can be significant enough to cause
heat-related illness. Rhabdomyolosis, for example, is a serious
condition associated with both heat stress and extended
physical exertion, in which muscle fibers break down and become
necrotic, threatening renal failure.\10\ Firefighters are at
particular risk,\11\ although the condition may be better known
from news coverage of exercise enthusiasts who aggressively
push themselves beyond healthy physical limits.\12\
---------------------------------------------------------------------------
\10\Id. at xxi, 42, 52-54.
\11\Id. at 54-55.
\12\See, e.g., Matt Hart, Does CrossFit Have a Future?, New Yorker
(July 20, 2021), https://www.newyorker.com/sports/sporting-scene/does-
crossfit-have-a-future; Richard Morgan, Rhabdo Is Rare but Potentially
Fatal. Here's Why Fitness Experts Fear a Rise in Cases This Summer,
Wash. Post (June 28, 2021), https://www.washingtonpost.com/lifestyle/
wellness/rhabdomyolosis-workout-gym-symptoms-kidney/2021/06/28/
b5940292-d5cc-11eb-9f29-e9e6c9e843c6_story.html; Julia Ries,
Bodybuilder Dana Linn Bailey Got `Rhabdo' After CrossFit: What to Know,
Healthline (Apr. 10, 2019), https://www.healthline.com/health-news/
fitness-star-ends-up-in-er-for-rhabdo-what-is-it; Gemma Wilson, Deadly
Condition Linked to CrossFit on the Rise, N.Y. Post (Apr.
7,2017),https://nypost.com/2017/04/07/deadly-condition-linked-to-
crossfit-on-the-rise/.
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Heat stress has a wide variety of effects short of heat
stroke. As body temperature rises, workers lose the ability to
think clearly, and perception, planning, and other mental
processes become impaired.\13\ Between this impaired mental
functioning and weakened physical performance from the effects
of heat stress, workers are also predictably at greater risk of
injury. These injuries other than the usual symptoms of heat-
related illness are referred to as heat-related injuries.\14\
---------------------------------------------------------------------------
\13\Heat Illness Facts, supra note 6.
\14\Heat Injury and Illness Prevention in Outdoor and Indoor Work
Settings, 86 Fed. Reg. 59,309, 59,310 (Oct. 27, 2021) [hereinafter Heat
ANPRM].
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Heat-related injuries might outpace illnesses. Researchers
analyzing more than 11 million workers' compensation claims in
California observed a link between heat and injury:
[H]otter temperature significantly increases the
likelihood of injury on the job. A day with high
temperatures between 85 and 90+F leads to a 5 to 7
percent increase in same-day injury risk, relative to a
day in the 60's. A day above 100+F leads to a 10 to 15
percent increase. . . .
[C]laims for many injuries not typically considered
heat-related rise on hotter days. These include
injuries caused by falling from heights, being struck
by a moving vehicle, or mishandling dangerous
machinery. The increase in injuries affects a wide
range of body parts, suggesting that the mechanisms may
not be limited to heat-illnesses such as heat stroke or
heat syncope.\15\
---------------------------------------------------------------------------
\15\R. Jisung Park, Nora Pankratz & A. Patrick Behrer, IZA DP No.
14560, Temperature, Workplace Safety, and Labor Market Inequality 2-3
(2021).
These injuries, one of the researchers explained to the
House Select Committee on the Climate Crisis, were ``the vast
majority'' of excess claims in the data set.\16\
---------------------------------------------------------------------------
\16\Advancing Environmental Justice Through Climate Action: Hearing
Before the H. Sel. Comm. on Climate Crisis, 117th Cong. 20 (2021)
(testimony of R. Jisung Park).
---------------------------------------------------------------------------
Widespread Risk
According to BLS data, heat stress killed 907 U.S. workers
between 1992 and 2019, for an average of 32 worker deaths per
year.\17\ In 2019 alone, according to government data,
occupational heat stress killed 43 workers.\18\ The true death
toll is likely much higher. A Public Citizen analysis of BLS
and Centers for Disease Control and Prevention (CDC) data
suggests that one in 17 heat-related deaths is occupational,
meaning that more than 700 workers die every year because of
occupational heat stress.\19\ Even with the prospect of
undercounting, the BLS data reveal a troubling trend: ``A
recent analysis of BLS data by National Public Radio and
Columbia Journalism Investigations found that the three-year
average of heat-related fatalities among U.S. workers has
doubled since the early 1990s.''\20\
---------------------------------------------------------------------------
\17\Heat ANPRM, supra note 14, at 59,310 (citation omitted).
\18\Id. (citation omitted).
\19\Juley Fulcher, Public Citizen, Boiling Point: OSHA Must Act
Immediately to Protect Workers From Deadly Temperatures 15 (2022).
\20\Heat ANPRM, supra note 14, at 59,310 (citation omitted).
---------------------------------------------------------------------------
BLS estimates that, from 2011 to 2019, there were 31,560
work-related heat injuries and illnesses serious enough to
require workers to spend days away from work, averaging 3,507
such illnesses and injuries every year.\21\ As with heat-
related fatalities, the heat-related illnesses and injuries are
likely undercounted. In fact, although labeled ``heat-related
illnesses and injuries,'' the BLS data actually count only
illnesses, because heat-related injuries are tracked simply as
injuries. For example, if a worker is weakened by heat stress,
falters, and then falls from a height, the resulting injury
would show up in BLS data as a fall, not specifically as a
heat-related injury.\22\ Some heat-related illnesses also may
present in a clinical setting as non-heat-related heart attacks
or other conditions and be recorded as such in available public
health data.\23\ A report examining the undercount observes
that California employers reported 300 times more heat-related
incidents to the state's workers' compensation system than to
the state's occupational safety regulatory agency; if the
pattern holds nationwide, then there may be as many as 170,000
heat-related occupational illnesses and injuries every
year.\24\
---------------------------------------------------------------------------
\21\Id. (citation omitted).
\22\Fulcher, supra note 19, at 11.
\23\Diane M. Gubernot et al., The Epidemiology of Occupational
Heat-Related Morbidity and Mortality in the United States: A Review of
the Literature and Assessment of Research Needs in a Changing Climate,
58 Int'l J. Biometeorol. 1779 (2015).
\24\Fulcher, supra note 19, at 12.
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Populations at Heightened Risk
Workers are at risk of heat-related illness and injury in
both outdoor and indoor work settings. A study of millions of
workers' compensation claims in California found claims across
both settings:
As one might expect, hotter temperature significantly
increases injuries in predominantly outdoor industries
such as agriculture, utilities and construction. But
higher temperatures also increase injuries in some
industries where work typically occurs indoors. In
manufacturing, for instance, a day with highs above
95+F increases injury risk by approximately 7 percent
relative to a day in the low 60's. In wholesale, the
effect is nearly 10 percent.\25\
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\25\Park et al., supra note 15, at 1-2.
Among outdoor workers, workers in agriculture and
construction have been found to be at particularly heightened
risk, according to multiple studies:
A study of government data from 2000 to 2010
found that the three sectors with the most heat-related
occupational fatalities in this period were
agriculture, construction, and support/waste/
remediation.\26\
---------------------------------------------------------------------------
\26\Diane M. Gubernot, G. Brooke Anderson & Katherine L. Hunting,
Characterizing Occupational Heat-Related Mortality in the United
States, 2000-2010: An Analysis Using the Census of Fatal Occupational
Injuries Database, 58 Am. J. Indus. Med. 203 (2015).
---------------------------------------------------------------------------
The fatality risk for farmworkers is
approximately 20 times greater compared to all civilian
industries\27\ and 35 times greater than all sectors
other than agriculture, construction, and support/
waste/remediation.\28\
---------------------------------------------------------------------------
\27\Union of Concerned Sci., Farmworkers at Risk: The Growing
Dangers of Pesticides and Heat 4 (2019), https://www.ucsusa.org/sites/
default/files/2019-12/farmworkers-at-risk-report-2019-web.pdf.
\28\Gubernot et al., supra note 26.
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A 2019 study found that construction workers
accounted for 36 percent of all occupational heat-
related deaths between 1992 to 2016, despite making up
only 6 percent of the total American labor force.\29\
---------------------------------------------------------------------------
\29\Xiuwen Sue Dong et al., Heat-Related Deaths Among Construction
Workers in the United States, 62 Am. J. Indus. Med. 1047 (2019).
---------------------------------------------------------------------------
Among the likely contributors to the heightened risk for
agricultural and construction workers is that both groups often
labor in direct sunlight, which can compound heat stress by
increasing the heat index by 15+F.\30\ Both groups also work
with some sort of personal protective equipment (PPE), such as
construction safety gear or the layers of clothing farmworkers
don to protect themselves against toxic pesticide exposures,
and this PPE can increase the temperature felt on bare skin by
up to 27+F.\31\
---------------------------------------------------------------------------
\30\Id.
\31\Id.
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Persistent social inequalities also show up in the heat
stress data. Low-wage workers bear a disproportionate burden of
occupational heat-related illness and injury:
[T]emperature exposure at work may exacerbate trends
in labor market inequality. . . . Due to the fact that
lower wage workers are more likely to work in dangerous
occupations, more likely to live and work in places
with greater heat exposure, and experience larger
marginal increases in risk on hotter days, the net
effect on injuries is far greater for low[-]income
groups. [F]or someone from the bottom quintile of the
zip-code level residential income distribution, the
annual effect is approximately 5 times larger than for
someone from the top quintile of the residential income
distribution.\32\
---------------------------------------------------------------------------
\32\Park et al., supra note 15, at 4.
Immigrants and people of color are overrepresented in the
low-wage workforce\33\ and in industries with high levels of
risk for heat-related illness and injury:
---------------------------------------------------------------------------
\33\Randy Capps et al., Urban Inst., Immig. Fams. & Wrks. Brief No.
4, A Profile of the Low-Wage Immigrant Workforce (Nov. 2003), https://
www.urban.org/sites/default/files/publication/59111/310880-A-Profile-
of-the-Low-Wage-Immigrant-Workforce.PDF; David Cooper, Workers of Color
are Far More Likely to Be Paid Poverty-Level Wages Than White Workers,
Econ. Pol. Inst. (June 21, 2018), https://www.epi.org/blog/workers-of-
color-are-far-more-likely-to-be-paid-poverty-level-wages-than-white-
workers/.
---------------------------------------------------------------------------
According to DOL's 2015-2016 survey of
agriculture workers, 76 percent of farmworkers were
foreign-born and 49 percent did not have valid work
authorization.\34\
---------------------------------------------------------------------------
\34\Trish Hernandez & Susan Gabbard, JBS Int'l, U.S. Dep't of Lab.,
Res. Rep. No. 13, National Agricultural Workers Survey (NAWS) 2015-
2016: A Demographic and Employment Profile of United States Farmworkers
i (2018), https://www.dol.gov/sites/dolgov/files/ETA/naws/pdfs/
NAWS_Research_Report_13.pdf.
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Immigrant workers are a significant
proportion of workers in construction (24.8-26
percent), in particular roofing (46.3 percent), and
warehousing (21 percent), as well as in a wide variety
of manufacturing industries.\35\
---------------------------------------------------------------------------
\35\Donald Kerwin et al., Ctr. for Mig. Studs., US Foreign-Born
Essential Workers by Status and State, and the Global Pandemic (May
2020), https://cmsny.org/wp-content/uploads/2020/05/US-Essential-
Workers-Printable.pdf; Building America: Immigrants in Construction and
Infrastructure-Related Industries, New Amer. Econ. Res. Fund (Sept. 3,
2020), https://research.newamericaneconomy.org/report/covid19-
immigrants-construction-
infrastructure/.
---------------------------------------------------------------------------
People of color represent 42 percent of the
construction workforce, 34.8 percent of manufacturing,
26.6 percent of mining, and 73 percent of farm
work.\36\
---------------------------------------------------------------------------
\36\Labor Force Statistics from the Current Population Survey, U.S.
Bureau of Lab. Stats., https://www.bls.gov/cps/cpsaat18.htm (last
visited Aug. 1, 2022); Hernandez & Gabbard, supra note 34, at i.
---------------------------------------------------------------------------
Unsurprisingly, these disparities are also reflected in the
harms attendant to occupational heat stress:
Hispanic workers comprise one third of heat-
related occupational fatalities since 2010 but only 17
percent of the U.S. workforce.\37\
---------------------------------------------------------------------------
\37\Julia Shipley et al., Heat is Killing Workers in the U.S.--and
There Are No Federal Rules to Protect Them, NPR (Aug. 17, 2021),
https://www.npr.org/2021/08/17/1026154042/hundreds-of-workers-have-
died-from-heat-in-the-last-decade-and-its-getting-worse.
---------------------------------------------------------------------------
According to a 2019 study on heat-related
deaths of U.S. construction workers, Black construction
workers were found to have, on average, a 51 percent
higher likelihood of a heat-related death.\38\
---------------------------------------------------------------------------
\38\Dong et al., supra note 29.
---------------------------------------------------------------------------
Construction workers in the U.S. who had
been born in Mexico had a 91 percent higher risk of
death from extreme heat.\39\
---------------------------------------------------------------------------
\39\Id.
---------------------------------------------------------------------------
Heat stress is a hazard across the U.S. workforce, and
these social determinants intensify the risk in inequitable
ways.
HEAT STRESS IS A DRAIN ON THE ECONOMY
While each instance of a heat-related illness, injury, or
fatality is a blow to working families, who bear most of the
costs of occupational illness and injury in general,\40\ heat
stress also costs employers. Heat-related diminishment in
workers' physical and mental capabilities reduces
productivity.\41\ According to a 2015 Environmental Protection
Agency (EPA) report, the United States will lose 1.8 billion
labor hours across the workforce in the year 2100 due to
extreme temperatures under a business-as-usual climate change
scenario. That adds up to $170 billion in lost wages.\42\ The
National Oceanic and Atmospheric Administration (NOAA)
estimates that heat-related labor capacity losses--that is,
reduction in acclimated workers' capacity to perform sustained
labor under environmental heat stress--are projected to double
globally by 2050.\43\ Moreover, heat-related injuries and
illnesses increase workers' compensation costs and hospital-
related healthcare expenses.\44\
---------------------------------------------------------------------------
\40\See generally J. Paul Leigh, Economic Burden of Occupational
Injury and Illness in the United States, 89 Milbank Q. 728 (2011)
(finding that workers' compensation absorbs less than 25% of the total
economic costs of workplace illness and injury).
\41\United Nations Dev. Prog. et al., Climate Change and Labor:
Impacts of Heat in the Workplace 3 (Matthew McKinnon et al. eds.,
2016), https://www.undp.org/publications/climate-change-and-labor-
impacts-heat-workplace.
\42\Envtl. Prot. Agency, Climate Change in the United States:
Benefits of Global Action 28 (2015), https://www.epa.gov/sites/
production/files/2015-06/documents/cirareport.pdf.
\43\John P. Dunn et al., Reductions in Labour Capacity from Heat
Stress Under Climate Warming, 3 Nature Climate Change 563 (2013).
\44\Sidney Shapiro & Katherine Tracy, Occupational Health And
Safety Law, in Public Law And Climate Disasters (Rosemary Lyster et al.
eds. 2018); U.S. Glob. Change Res. Prog., Fourth National Climate
Assessment, Volume II (Nov. 2018), https://nca2018.globalchange.gov/.
---------------------------------------------------------------------------
HEAT-RELATED ILLNESS AND INJURY AT WORK ARE PREVENTABLE
Heat stress has been widely recognized as a threat to human
health for a very long time. The modern scientific basis for
understanding the hazard, preventing heat-related illness and
injury, and responding to heat-related emergencies has been
developed over at least a century. Ways to prevent illness and
injury are readily achievable, and the means to do so are well
within the ability of employers to provide.
Long-Recognized Hazards
Heat stress has been recognized as a health hazard for
working people since ancient times. Heat stroke is considered
to be the oldest known medical condition.\45\ Ancient Greeks,
Romans, and Egyptians recognized the hazard and described it in
relation to the dog star Sirius; to this day, we still refer to
the ``dog days of summer.''\46\ Deadly heat-related illness is
documented in the Old Testament several times.\47\ A body of
scholarship on the treatment of heat-related illness dates back
to at least 400 BC, when Hippocrates prescribed pouring cold
water on the body of a person suffering heat-related
illness.\48\
---------------------------------------------------------------------------
\45\Douglas J. Casa, Robert Carter & Kent Scriber, Historical
Perspectives on Medical Care for Heat Stroke, Part 1: Ancient Times
Through the Nineteenth Century: A Review of the Literature, 2 Athletic
Training & Sports Health Care 132 (2010).
\46\Id. at 133.
\47\Id. See also, e.g., Judith 8:2-3 (King James) (recounting the
story of Judith's husband, who ``died in the barley harvest. . . . For
as he stood overseeing them that bound sheaves in the field, the heat
came upon his head, and he fell on his bed, and died in the city of
Bethulia.'').
\48\Casa et al., supra note 45, at 133-34.
---------------------------------------------------------------------------
Just as long recognized is the need to prevent heat-related
illness for people exerting themselves in hot conditions. In
332 BC, for example, military advisors counseled Alexander the
Great against embarking on a long march in hot conditions
without sufficient water supplies.\49\ The Canon of Medicine of
Avicenna, published in 1020 AD, had precautions against thirst,
traveling in hot conditions, and heat stroke. Among other
things, it recommended periodic breaks in the shade and cooling
down with water.\50\ Observers in the Civil War noted that
seasoned soldiers took care to prevent ``sunstroke'' by
stopping their advance when symptoms hit, moving to shaded
areas, loosening their uniforms, and resting until symptoms
ended.\51\ An 1883 medical manual reviewing centuries of
discussion about treatments for heat illness declared ``a
little water, and often, should be the rule.''\52\
---------------------------------------------------------------------------
\49\Id. at 133.
\50\Id. at 134.
\51\Douglas J. Casa, Robert Carter & Kent Scriber, Historical
Perspectives on Medical Care for Heat Stroke, Part 2: 1850 Through the
Present: A Review of the Literature, 2 Athletic Training & Sports
Health Care 178, 180 (2010).
\52\Casa et al., supra note 45, at 135.
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The U.S. military adopted a preventive program for heat
stress in 1952, built on a body of research and observations
stretching back to at least the late 19th Century:
After World War II, much attention regarding
[exertional heat stress] focused on prevention by
instituting measures such as heat acclimatization
guidelines, work-rest cycles, and hydration intake
guidelines. Prior to this period, commanders
erroneously ignored the consequences of exercise in the
heat, and many withheld water during intense or
prolonged maneuvers and field operations because it
``toughened the troops.'' In 1954, the Navy Bureau of
Medicine and Surgery evaluated the wet bulb globe
temperature (WBGT) as part of its heat injury
prevention program, and in 1956 the WBGT index was
adopted by the U.S. Marine training command at Parris
Island, SC. . . . Shortly thereafter, the use of WBGT
became widespread within the U.S. military community
and heat illness rates subsequently decreased. The
WBGT, as a new climatic heat stress index, replaced
many existing indices around the world. The British
Army developed guidelines based on WBGT and
acclimatization strategies in the 1960s and 1970s, in
response to a large number of heat illnesses among
troops deployed to Cyprus, Malaya, and Kuwait.\53\
---------------------------------------------------------------------------
\53\Casa et al., supra note 51, at 185.
The armed forces continue to apply the WBGT in a color-
coded flag system for conveying the heat-related risk level and
advising commanders on levels of physical activity and
cautionary observation.\54\
---------------------------------------------------------------------------
\54\When the Days Get Hot, the Navy Color Coded Flag System Aims to
Keep Sailors Safe: Flag Colors Change Based on the Temperature, WTKR
(July 23, 2021), https://www.wtkr.com/news/military/when-the-days-get-
hot-the-navy-color-coded-flag-system-aims-to-keep-sailors-safe;
Samantha L. Rivero, Can't Take the Heat? Flags Show the Reason, The
Flagship (June 6, 2011), https://www.militarynews.com/norfolk-navy-
flagship/news/top_stories/can-t-take-the-heat-flags-show-the-reason/
article_77f479d5-b7b5-5083-b947-f70d6b98929d.html.
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The risk of heat stress from exertion in hot environments
has also been long recognized in the context of athletics. The
National Center for Catastrophic Sport Injury Research has
tracked heat stroke deaths among football players since
1931\55\ and has tracked heat-related illness in other sports
since 1982.\56\ Multiple athletics bodies and sports medicine
authorities have for some time maintained position statements
or policies related to heat stress.\57\
---------------------------------------------------------------------------
\55\Allyson S. Howe & Barry P. Boden, Heat-Related Illness in
Athletes, 35 Am. J. Sports Med. 1385, 1386 (2007).
\56\Annual Reports, Nat'l Ctr. for Catastr. Sports Inj. Res.,
https://nccsir.unc.edu/reports/ (last visited Aug. 11, 2022).
\57\See, e.g., Douglas J. Casa et al., National Athletic Trainers'
Association Position Statement: Exertional Heat Illnesses, 50 J. Athl.
Train. 986 (2015); Nat'l Fed'n of State High Schl. Assoc'ns, Position
Statement and Recommendations for Hydration to Minimize the Risk for
Dehydration and Heat Illness (2008), http://ossaa.net/docs/Baseball/
position%20statement%20drinksREV.pdf; Inter-Assoc'n Task Force on
Exert. Heat Ill., Inter-Association Task Force on Exertional Heat
Illnesses Consensus Statement (2003), https://www.nata.org/sites/
default/files/inter-association-task-force-exertional-heat-illness.pdf;
Comm. on Sports Med. & Fitness, Am. Acad. of Peds., Climatic Heat
Stress and the Exercising Child and Adolescent, 106 Peds. 158 (2000);
Am. Coll. of Sports Med., Position Stand on the Prevention of Thermal
Injuries During Distance Running, 19 Med. Sci. Sports Exerc. 529
(1987).
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OSHA, too, has long known of the need to address
occupational heat stress. NIOSH first published a set of
recommendations to OSHA for a heat stress standard in 1972,
with revisions in 1986 and 2016.\58\ Even though OSHA denied a
2011 petition for rulemaking, its leadership at the time
understood that workers needed protections from heat stress. In
fact, during the Deepwater Horizon oil spill cleanup and
recovery period in 2010, OSHA leaders facilitated the
development of policies to prevent heat-related illness and
injury that proved successful in protecting workers from heat-
related illness:
---------------------------------------------------------------------------
\58\NIOSH Criteria, supra note 2, at iii.
During the Deepwater Horizon response in 2010, OSHA
and NIOSH prepared guidelines based on the military's
for high temperatures and humidity of the Gulf Coast.
BP provided training and specified work and rest cycles
based on the ambient conditions. For instance, they
restricted work to 20 minutes with 40 minutes of rest
in a shaded area when the temperature was between 92
and 98. Considering they employed 50,000 unfit workers
on long shifts, it is amazing there were few serious
heat exhaustions and no heat strokes.\59\
---------------------------------------------------------------------------
\59\From the Fields to the Factories: Preventing Workplace Injury
and Death from Excessive Heat, 116th Cong. 12 (2019) (statement of
Prof. Thomas E. Bernard) [hereinafter 2019 Hearing].
Dr. David Michaels, Assistant Secretary of Labor for
Occupational Safety and Health at the time, later explained
that the agency denied the petition because it was overwhelmed
by active work to develop standards on other health
hazards.\60\ Dr. Michaels has subsequently taken the position
that the hazard is so severe and the risk is rising so quickly
that a standard is imperative.\61\
---------------------------------------------------------------------------
\60\As Climate Heats Up, Government Must Protect Workers from Heat,
Pub. Cit. (July 17, 2018), https://www.citizen.org/news/as-climate-
heats-up-government-must-protect-workers-from-heat/.
\61\Id. See also David Arkush & David Michaels, Climate Change
Isn't Just Cooking the Planet. It's Cooking Our Workforce, Wash. Post
(July 19, 2018), https://www.washingtonpost.com/opinions/climate-
change-isnt-just-cooking-the-planet-its-cooking-our-workforce/2018/07/
19/15dd33e0-89fd-11e8-85ae-511bc1146b0b_story.html.
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States are already acting. Five states have developed heat
standards for workers in the absence of a federal standard.
California paved the way with a heat stress standard for
outdoor workers, and a standard for indoor workers is in
development. Oregon's standard covers both indoor and outdoor
workers, Washington's standard covers only outdoor workers, and
Minnesota's standard covers only indoor workers.\62\ The
standard in Colorado, which is the most recent state to pass
such a law, applies only to agricultural workers.\63\
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\62\Heat ANPRM, supra note 14, at 59,316.
\63\Colorado Department of Labor and Employment Issues
Groundbreaking Farmworker Safety Standards, Towards Justice (Feb. 10,
2022), https://towardsjustice.org/2022/02/10/colorado-department-of-
labor-and-employment-issues-groundbreaking-farmworker-safety-
standards/.
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Within Employers' Control
Employers do not control the weather, but they do control
the workplace and the conditions of work.\64\ The means to
prevent heat-related illness and injury are well known and
within employers' power to provide.
---------------------------------------------------------------------------
\64\See generally Elizabeth Anderson, Private Government: How
Employers Rule Our Lives (and Why We Don't Talk About It) (2017).
---------------------------------------------------------------------------
For example, a witness in the 2019 Hearing described
conditions in a southern California warehouse that illustrate
the impact of employer choices on heat-related risks:
The work pace . . . was extremely high . . . We had
to load or unload 450 boxes per hour, boxes between 10
and 100 pounds, carry [them] up to 40 feet out to the
container and to the warehouse floor, and stack onto
the carts or pallets for 8 hours per day. You will have
to load, carry, and stack a box container containing a
microwave [or a] TV every 7\1/2\ seconds. I saw workers
at this warehouse faint from the heat.
People will feel sick and not know how to get help.
Instead of providing the rest of us with information on
how to protect ourselves, the company told the workers
who fainted or feel sick and were facing heat distress
to rest or go home, and told the rest of us keep
working at the same pace of before.
We who worked at the warehouse knew that these
conditions were dangerous. We received training from
educators and occupational health expert[s] from the
institutions like UCLA. We began to ask for clean
water, education around heat, and more breaks. The
manager refused. . .
We have . . . a picture of some coworkers with
thermometers inside the warehouse showing 102 degrees
that summer. Some of us who ask for protections or who
take breaks, we are not brought back to work. But the .
. . warehouse managers and the staffing agency leads
will constantly remind us that we are temps, and that
there will be not work for those who speak up or slow
down.\65\
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\65\2019 Hearing, supra note 59, at 22 (statement of warehouse
worker Javier Rodriguez).
Mr. Rodriguez's testimony raises many possible points of
intervention in the employer's control: the physical
environment itself; the load and pace of work; the availability
of training; the availability of clean water; the number of
rest breaks allowed; and the management posture toward workers
taking breaks or requesting protection. Small changes at these
points can make the difference between a workplace that reduces
or magnifies the risk of heat-related illness and injury.
When employers provide unsafe workplaces, fail to take
steps to prevent heat-related illness and injury, or press
workers to continue despite obvious hazards, the consequences
for workers can be grave. These concerns are raised repeatedly
in news reports, surveys, and worker complaints such as the
following:
Clergy & Laity United for Economic Justice-
CA, UCLA Labor and Occupational Safety and Health
Program, and Warehouse Workers United published a study
in 2011 of health and safety hazards in the warehouse
industry in Southern California. Of 101 warehouse
workers surveyed, 73 percent reported ``excessive heat
or cold as a problem,'' 69 percent reported a lack of
ventilation, and 48 percent reported lacking an
``adequate supply of drinking water.''\66\
---------------------------------------------------------------------------
\66\Warehouse Workers United & Deogracia Cornelio, Shattered Dreams
and Broken Bodies: A Brief Review of the Inland Empire Warehouse
Industry (2011), https://workercenterlibrary.org/wp-content/uploads/
2021/08/Shattered_Dreams_and_Broken_Bodies718.pdf [hereinafter
Shattered Dreams and Broken Bodies].
---------------------------------------------------------------------------
AT&T technicians in Texas were reported in
2011 alleging that they were not allowed to use the air
conditioning in their trucks to cool down. The company
responded that workers may idle their vans in order to
use air conditioning for health and safety reasons, but
the workers replied that managers use sensors to track
when vehicles idle and repeatedly send the message that
idling will result in termination.\67\
---------------------------------------------------------------------------
\67\Amy Davis, Workers Claim Company Is Putting Them In Danger,
KPRC Local 2 (Aug. 24, 2011), https://www.click2houston.com/news/2011/
08/24/workers-claim-company-is-putting-them-in-danger/.
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A wildlands firefighter in a standard
training exercise on a particularly hot day in 2019
began to lag behind his peers. Even though his captain
``recognized that he hadn't given his body enough of a
rest yet,'' the captain nevertheless ordered a repeat
of the exercise, during which the firefighter
``stumbled and told his supervisor he felt exhausted--
two telltale signs of heat stress.'' Not until he
collapsed did his captain summon an airlift to a
hospital. The firefighter died the next day.\68\
---------------------------------------------------------------------------
\68\Shipley et al., supra note 37.
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In an NBC News investigation, UPS employees
shared that their trucks, which do not have air
conditioning, can reach temperatures as high as
152+F.\69\ Workers in eight states alleged that UPS
fails to comply with its own heat policies: ``Managers
push employees to keep working even when they're sick
and discourage them from reporting illnesses, they
said. When employees insist on treatment, they said
they are often taken to urgent care centers that cannot
administer IVs, delaying crucial care.''\70\
---------------------------------------------------------------------------
\69\Lisa Riordan Seville et al., In the Hot Seat: UPS Delivery
Drivers at Risk of Heat-Related Illnesses, NBC News (July 18, 2019),
https://www.nbcnews.com/business/economy/hot-seat-ups-delivery-drivers-
are-risk-heat-stroke-kidney-n1031321.
\70\Lisa Riordan Seville & Adiel Kaplan, Heat Takes Down More UPS
Workers During Hottest Summer Ever, NBC News (Aug. 22, 2019), https://
www.nbcnews.com/business/economy/heat-takes-down-more-ups-workers-
during-hottest-summer-ever-n1044396.
---------------------------------------------------------------------------
An Idaho farmworker told Politico in 2021
that her supervisors provide rest breaks and water, but
only on their timetable--not when the workers
themselves need them. ``When the heat is at its worst,
you often can't go get water until you're done or until
there is a designated break,'' she explained. ``But
sometimes, it's not about having a designated break. If
your body is giving out, it's giving out regardless of
when the scheduled break is.''\71\
---------------------------------------------------------------------------
\71\Ximena Bustillo, Western Heatwave Highlights Need for Better
Farmworker Protections, Politico (July 8, 2021), https://
subscriber.politicopro.com/article/2021/07/western-heatwave-highlights-
need-for-better-farmworker-protections-2067572.
---------------------------------------------------------------------------
Multiple current and former restaurant
workers submitted comments to an OSHA rulemaking docket
in 2021 and 2022 urging standards to reduce extreme
heat in restaurant kitchens. Their comments cited
experiences of dehydration, heat exhaustion, and other
challenges because of broken thermostats and
insufficient climate control in the ``back-of-the-
house'' areas of restaurants.\72\ A worker center
organizing restaurant workers has conducted surveys
annually since 2005 and received reports every year
about heat stress.\73\
---------------------------------------------------------------------------
\72\Rulemaking Docket: Heat Injury and Illness Prevention in
Outdoor and Indoor Work Settings, Regulations.gov, https://
www.regulations.gov/docket/OSHA-2021-0009/
comments?filter=restaurant&pageNumber=2 (last visited Aug. 2, 2022).
\73\Tim Carman, As Temperatures Rise, Chefs Find They Can't Stand
the Heat Anymore, Wash. Post (Aug. 1, 2022), https://
www.washingtonpost.com/food/2022/08/01/heat-restaurant-workers-osha/.
---------------------------------------------------------------------------
Achievable Protections
Regulating workers' exposure to heat stress on the job to
prevent heat-related illness and injury is feasible. In the
2019 Hearing, a public health official from Waco, Texas shared
the impact from a few simple measures:
After noting increased accidents, injuries, and
illnesses during the summer months in outdoor workers,
and little to no preventive measures in place, I
explained the benefits of a heat-related illness
prevention program to the employer. The city manager
agreed to the prevention program for at-risk workers in
streets, traffic, parks and recreation, solid waste,
and utilities departments.
I used the information from OSHA's technical manual
on heat stress and NIOSH's criteria for standard
occupational exposure to heat and hot environments to
create the city's heat stress awareness program. This
program included hydration, access to shade, supervisor
and worker training on heat stress and heat-related
illness, first aid and emergency response procedures,
establishing a 3- to 4-day gradual heat acclimatization
schedule, altered high heat work schedules,
communication procedures, and medical monitoring of the
at-risk workers.\74\
---------------------------------------------------------------------------
\74\2019 Hearing, supra note 59, at 40.
University of Pennsylvania researchers analyzed the program
data and found that the Waco program was successful at reducing
---------------------------------------------------------------------------
harms to workers and costs for employers:
The total number of heat-related cases significantly
decreased after implementation of the heat stress
awareness program, and the workers' compensation costs
went down 50 percent for heat-related illness.\75\
---------------------------------------------------------------------------
\75\Id.
These steps can be taken without undue burden on employers.
Many of the tools to protect workers are not costly and can be
implemented without major disruptions to work processes. In
particular, the core practices of hydration, rest in shaded or
cooled areas, and acclimatization are known widely, proven to
be effective, and well within the power of employers to
provide.\76\
---------------------------------------------------------------------------
\76\See NIOSH Criteria, supra note 2; Water. Rest. Shade., Occ.
Safety & Health Admin., https://www.osha.gov/heat-exposure/water-rest-
shade (last visited Aug. 1, 2022) [hereinafter Water/Rest/Shade
Campaign].
---------------------------------------------------------------------------
Frequent hydration is critical to protect workers from
heat-related illness.\77\ Prolonged exposure to heat can cause
dehydration as the body perspires and depletes the body's
water.\78\ Consuming eight ounces of cool water or other
hydrating beverages every 20 minutes through the workday can
reduce the probability of heat illness.\79\ OSHA also
recommends employers provide electrolyte-rich drinks for
workers working more than two hours in the heat, as workers
lose salt and electrolytes through perspiration.\80\ By
providing water or electrolyte-rich beverages at regular
intervals, employers can reduce the occurrence of heat-related
illness.
---------------------------------------------------------------------------
\77\Water/Rest/Shade Campaign, supra note 76.
\78\Cal/OSHA, What Is Heat Illness?, Cal/OSHA Heat Illness
Prevention e-Tool, https://www.dir.ca.gov/dosh/etools/08-9006/
whatis.htm (last visited Aug. 10, 2022).
\79\Water/Rest/Shade Campaign, supra note 76.
\80\Id.
---------------------------------------------------------------------------
Periodic rest breaks in shaded or cooled areas can also be
beneficial in preventing heat-related illness. Shade and breaks
allow workers to recuperate from heat stress and stabilize
their body temperatures.\81\ Employers have access to many
detailed recommendations on how to provide cool-down breaks.
OSHA recommends employers provide rest breaks, in cool
locations if possible, and to increase the duration of the
breaks as the temperature increases.\82\ NIOSH and the American
Conference of Governmental Industrial Hygienists provide
specific recommendations for work and rest schedules depending
on the labor and weather conditions.\83\
---------------------------------------------------------------------------
\81\Id.
\82\Id.
\83\See NIOSH Criteria, supra note 2; Water/Rest/Shade Campaign,
supra note 76.
---------------------------------------------------------------------------
Acclimatization is the progressive exposure of workers to
heat to improve their physiological response and tolerance to
heat stress.\84\ Acclimatized workers are physiologically
better able to handle high temperatures and less likely to
suffer heat-related illness.\85\ Acclimatization can be an
effective preventive measure for new workers and existing
workers returning to hot conditions.\86\ The absence of an
acclimatization policy likely explains a particularly troubling
pattern: nearly 50 percent of heat-related deaths happen on a
worker's first day, and over 70 percent occur in a worker's
first week.\87\ NIOSH and OSHA currently recommend that an
acclimatization schedule should schedule workers to work for
approximately 20 percent of the regular workday in the heat on
the first day and then increase the duration of work under heat
stress by an additional 20 percent each subsequent day.\88\
---------------------------------------------------------------------------
\84\Heat: Protecting New Workers, Occ. Safety & Health Admin.,
https://www.osha.gov/heat-exposure/protecting-new-workers (last visited
Aug. 1, 2022) [hereinafter New Workers].
\85\NIOSH Criteria, supra note 1.
\86\New Workers, supra note 84.
\87\Sheila Arbury et al., Heat Illness and Death Among Workers--
United States, 2012-2013, 63 Morb. & Mort. Wkly. Rep. 661 (2014).
\88\Id.
---------------------------------------------------------------------------
In addition to these core practices, NIOSH recommends such
practical preventive measures as increasing the number of
workers assigned to a duty to minimize the exertion, pairing
workers together to monitor each other for heat-related illness
symptoms, and implementing a system to notify workers of a
possible heat wave.\89\
---------------------------------------------------------------------------
\89\Heat Stress--Recommendations, Nat'l Inst. for Occ. Safety &
health, https://www.cdc.gov/niosh/topics/heatstress/
recommendations.html (last viewed Aug. 10, 2022).
---------------------------------------------------------------------------
Employers can also engineer their workplaces to reduce or
eliminate hazardous heat. If the heat is generated by an
industrial source, such as ovens or furnaces, adding additional
layers of insulation to shield workers from heat sources can
offer significant protection to workers with limited disruption
to work processes.\90\ Other ways in which heat can be
controlled in indoor settings include adding fans, air
conditioning, or increased ventilation for locations where
workers congregate. As NIOSH guidance notes, ``increasing air
movement by the use of fans or blowers is often the simplest
and usually the cheapest approach.''\91\ These engineering
measures are often simple and effective measures that have been
used for decades to protect workers.
---------------------------------------------------------------------------
\90\2019 Hearing, supra note 50, at 13.
\91\NIOSH Criteria, supra note 2.
---------------------------------------------------------------------------
Whatever the combination of measures in a preventive
program, supervisors and employees must be trained to
understand and apply it. As exposure to high temperatures is
correlated with cognitive impairment and slower response times,
workers experiencing heat stress may not be able to identify
the risk they are in and respond to the threat.\92\ Even those
who can respond and request rest or medical intervention are at
the mercy of their supervisors, who likewise need training to
understand symptoms and respond quickly.
---------------------------------------------------------------------------
\92\ Adel Mazloumi et al., Evaluating Effects of Heat Stress on
Cognitive Function among Workers in a Hot Industry, 4 Health Promo.
Persp. 240 (2014).
---------------------------------------------------------------------------
The benefits of a sound heat stress preventive program will
be significant to workers and employers. Prevention will save
lives and avert the downstream consequences of occupational
illness and injury that can severely impact working families'
economic wellbeing. It will also avert the costs to employers
discussed above and reduce their workers' compensation costs.
Industry lobbying groups are very likely to reply that
these simple measures will break the bank. However, the costs
they imagine likely bear no relation to reality; this tends to
be the case when it comes to opposition to regulation.\93\ The
California experience is proof that prevention pays.The
California Farm Bureau Foundation, for example, testified in
the 1993 Hearing against the idea of an outdoor heat standard,
citing concern for employers' ability to comply with a standard
successfully and avoid litigation.\94\ By the 2019 Hearing,
however, the same organization had changed its tune. Favorably
describing California's 2006 outdoor heat illness prevention
standard, a representative of the group testified that ``the
heat illness prevention standard is coming a long way toward
achieving its goal.''\95\ He went on to credit California's
outdoor heat stress standard with saving lives and celebrated
the employers in his group for widespread compliance with the
standard.\96\ This change of heart shows that a standard based
on proven, effective measures to prevent heat-related illness
can protect workers without undue harm to employers.
---------------------------------------------------------------------------
\93\Sidney Shapiro et al., Ctr. for Prog. Ref., White Paper No.
1109, Saving Lives, Preserving the Environment, Growing the Economy:
the Truth About Regulation (2011), https://cpr-assets.s3.amazonaws.com/
documents/RegBenefits-1109.pdf; Ruth Ruttenberg & Assocs., Pub. Cit.,
Not Too Costly, After All: An Examination of the Inflated Cost-
Estimates of Health, Safety and Environmental Protections (2004),
https://www.citizen.org/wp-content/uploads/migration/not-too-
costly.pdf; Hart Hodges, Econ. Pol. Inst., EPI Brief. Paper No. 69,
Falling Prices: Cost of Complying With Environmental Regulations Almost
Always Less Than Advertised (1997), https://www.epi.org/publication/
bp69/; Pew Clean Energy Init., Government Regulation: Costs Lower,
Benefits Greater Than Industry Estimates, Pew Trusts (May 26, 2015),
https://www.pewtrusts.org/en/research-and-analysis/fact-sheets/2015/05/
government-regulation-costs-lower-benefits-greater-than-industry-
estimates.
\94\Hearing on H.R. 1173 and H.R. 1999 Before the Subcomm. on Lab.
Stands., Occ. Health & Safety of the H. Comm. on Educ. & Lab., 103rd
Cong. 91 (1993) (testimony of Doug Mosber, Second Vice President of the
California Farm Bureau Federation).
\95\2019 Hearing, supra note 59, at 50.
\96\Id. at 51-61.
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THE THREAT TO WORKERS IS GROWING RAPIDLY
NIOSH first advised OSHA on the need for a heat stress
standard 50 years ago.\97\ OSHA did not develop a standard. The
current and projected consequences of climate change, however,
dictate the need for immediate action. Workers cannot wait
another 50 years.
---------------------------------------------------------------------------
\97\See text accompanying note 58 supra.
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Recent years have been much hotter than years past. In
fact, ``nineteen of the hottest years [on record] have occurred
since 2000.''\98\ June 2021 was the hottest June ever recorded
in U.S. history.\99\ Cities and states known for their
temperate summers have been reporting record-breaking
temperatures over the past few years. In June 2021, for
example, the Pacific Northwest states of Oregon and Washington
reported significantly high temperatures that the region had
never seen before.\100\ Climate scientists from across the
globe concluded the heat anomalies in the Pacific northwest in
2021 were ``virtually impossible without human-caused climate
change.''\101\
---------------------------------------------------------------------------
\98\Key Indicators, NASA Glob. Clim. Change: Vital Signs of the
Planet, https://climate.nasa.gov/vital-signs/global-temperature/
# text=Nineteen%20of%20the%20hottest%20years,source%3A%20NASA%2FGISS
(last visited Aug. 10, 2022).
\99\Fulcher, supra note 19, at 6.
\100\Western North American Extreme Heat Virtually Impossible
Without Human-Caused Climate Change, World Weather Attribution, https:/
/www.worldweatherattribution.org/western-north-american-extreme-heat-
virtually-impossible-without-human-caused-climate-change/ (last visited
Aug. 10, 2022).
\101\Id.
---------------------------------------------------------------------------
The projections for the future are grim. According to the
Union of Concerned Scientists (UCS), the impacts of climate
change will be significant as soon as the middle of this
century:
Absent significant climate action, Florida
and Texas will likely both experience an additional
month worth of days with heat indices above the worker-
safety threshold of 90+F, increasing the need for an
enforceable OSHA standard to prevent heat-related
illness.\102\
---------------------------------------------------------------------------
\102\Kristina Dahl et al., Union of Concerned Sci., Killer Heat in
the United States: Climate Choices and the Future of Dangerously Hot
Days 16 (2019), https://www.ucsusa.org/sites/default/files/attach/2019/
07/killer-heat-analysis-full-report.pdf [hereinafter Killer Heat].
---------------------------------------------------------------------------
Of the nation's 481 urban centers with more
than 50,000 people, nearly one-third will experience a
month's worth of days with a heat index above
105+F.\103\
---------------------------------------------------------------------------
\103\These models do not incorporate or account for the urban heat
island effect which makes cities hotter than non-urban areas, with the
consequence of underestimating the prevalence and degree of hot
temperatures in urban areas and, therefore, their impact on workers.
Id. at 16.
---------------------------------------------------------------------------
Indiana and Illinois, with current combined
agricultural exports of $12.8 billion,\104\ are
expected to experience an average of 100 days above the
90+F threshold, above which workers are especially
vulnerable to heat-related illness.\105\
---------------------------------------------------------------------------
\104\Ill. Dep't of Ag., Facts About Illinois Agriculture,
Illinois.Gov, https://www2.illinois.gov/sites/agr/About/Pages/Facts-
About-Illinois-Agriculture.aspx (last visited Aug. 8, 2022); Ind. State
Dep't of Ag., ISDA: About Indiana Agriculture, In.Gov, https://
www.in.gov/isda/3555.htm (last visited Aug. 8, 2022).
\105\Killer Heat, supra note 102, at 19.
---------------------------------------------------------------------------
If the United States does not implement
measures to combat climate change, outdoor workers are
likely to experience three to four times more days with
a heat index above 100+F by 2050.\106\ Indoor workers
are also impacted by climate change, especially during
the summer, when temperatures in warehouses can exceed
temperatures outdoors.\107\
---------------------------------------------------------------------------
\106\Union of Concerned Sci., Too Hot to Work: Assessing the
Threats Climate Change Poses to Outdoor Workers (2021), https://
www.ucsusa.org/sites/default/files/2021-09/Too-Hot-to-Work_9-7.pdf.
\107\Shattered Dreams and Broken Bodies, supra note 66.
---------------------------------------------------------------------------
The effects of climate change will be felt broadly, but
workers will be at heightened risk. A study of OSHA heat
citations noted that the heat index for the fatality and
illness claims in the period covered ranged between 84+F and
105.7+F.\108\ The projections above forecast an increase in
days with temperatures in that range and beyond.
---------------------------------------------------------------------------
\108\Arbury et al., supra note 87, at 662.
---------------------------------------------------------------------------
Workers have been called the ``climate canaries'' in part
because, although the effects of climate change will be felt
broadly, employers and the work environments they create may
limit workers' ability to adapt.\109\ An enforceable standard,
however, will require workplaces to adapt instead of exposing
workers to dangerous heat.
---------------------------------------------------------------------------
\109\Cora Roelofs & David Wegman, Workers: The Climate Canaries,
104 Am. J. Pub. Health 799 (2014).
---------------------------------------------------------------------------
OSHA'S CURRENT EFFORTS ARE INSUFFICIENT
The threat to workers from heat stress is significant, and
it shows no signs of abating in the foreseeable future. OSHA
does have three current initiatives underway to address this
threat:
(1) a variety of education and outreach initiatives,
including an educational campaign, a mobile app, and
guidance to employers based on the National Weather
Service heat index;
(2) enforcement citing an employer's general duty to
provide employment free from recognized dangers; and
(3) a long-term effort to develop a standard on heat
under the Occupational Safety and Health Act of 1970
(OSH Act).\110\
---------------------------------------------------------------------------
\110\29 U.S.C. Sec. 651 et seq.
---------------------------------------------------------------------------
As laudable as these initiatives are, they are not likely
to achieve meaningful protection for workers from heat stress
any time soon.
Limited Education and Guidance
Robust education to inform employers and workers about the
hazards of heat stress and ways to prevent it can be valuable,
but it is not sufficient in the absence of a standard. In fact,
it is not clear if OSHA's current education efforts are even
adequate.
OSHA provides guidance to employers counseling them to
refer to the heat index and apply caution where warranted, but
that heat index guidance falls short:
There is only one federal vague recommendation tied
to the heat index. Under OSHA's heat index, combined
heat and humidity levels at less than 91 degrees are
considered ``lower caution'' and temperatures between
91 and 103 are considered ``moderate risk.'' Per the
heat index, employers should begin ``basic heat safety
and planning'' in the lower caution stage and
``implement precautions and have heightened awareness''
in the moderate stage. The heat index does not advise
employers to discontinue manual work.\111\
---------------------------------------------------------------------------
\111\Bustillo, supra note 71 (emphasis added).
OSHA and NIOSH have jointly developed a mobile app, the
Heat Safety Tool, to advise workers in real time about their
risks.\112\ When researchers tested it with farmworkers in
eastern North Carolina, the tool was found to be reasonably
reliable for identifying low-risk conditions for heat stress
but decreasingly reliable as risk conditions become
increasingly severe. The app completely failed at identifying
high and extreme risk conditions.\113\
---------------------------------------------------------------------------
\112\OSHA-NIOSH Heat Safety Tool App, Nat'l Inst. for Occ. Safety &
Health, https://www.cdc.gov/niosh/topics/heatstress/heatapp.html (last
visited July 30, 2022).
\113\Danielle Dillane & Jo Anne G. Balanay, Comparison Between
OSHA-NIOSH Heat Safety Tool App and WBGT Monitor to Assess Heat Stress
Risk in Agriculture, 17 J. Occ. & Envtl. Hygiene 181 (2020).
---------------------------------------------------------------------------
Instead of embarking upon a standard during the Obama
administration, OSHA ran an educational campaign:\114\
---------------------------------------------------------------------------
\114\Water/Rest/Shade Campaign, supra note 76.
[OSHA leadership] touted the campaign as a success at
the time. The numbers are less clear. The number of
workers who succumbed to heat topped 61 cases during
the campaign's inaugural year, in 2011--an all-time
high. Another 65 workers would die from heat exposure
in the ensuing two years, closer to the annual average
for the decade, while the campaign remained an agency
priority.\115\
---------------------------------------------------------------------------
\115\Shipley et al., supra note 37.
Even if the campaign had been effective at the time, the
agency has allowed it to become stale. An OSHA advisory group
recently reviewed the agency's educational materials and found
that they had not been updated in 10 years, were incomplete,
did not fully apply across a range of workplaces, and may not
reflect the current science.\116\
---------------------------------------------------------------------------
\116\Transcript of Heat Injury and Illness Prevention Work Group
Meeting, Nat'l Adv. Comm. on Occ. Safety & Health, at 49-50, 53, 67,
76, 84 (Feb. 25, 2022), https://downloads.regulations.gov/OSHA-2022-
0003-0004/content.pdf.
---------------------------------------------------------------------------
Education, guidance, and app-based hazard alerts are all
worthwhile endeavors. However, when employers fail to provide
healthy conditions of employment and discourage workers from
taking basic steps to protect themselves, the education is all
for naught.
Decreasing Access to General Duty Clause Enforcement
In the absence of a standard, OSHA can bring enforcement
actions for heat-related violations using a fallback provision
in the OSH Act, but this approach may have diminishing utility.
Section 5 of the OSH Act, widely known as the ``General
Duty Clause,'' requires employers to provide a safe and healthy
workplace ``free from recognized hazards that are causing or
are likely to cause death or serious physical harm.''\117\ OSHA
can bring an enforcement action under the General Duty Clause
in situations without a specified standard on the books, but
OSHA must prove (1) that employees were exposed to a hazard the
employer failed to prevent, (2) that the hazard is generally
recognized, (3) that the hazard is likely to cause death or
serious physical harm, and (4) that there was a feasible method
to correct the hazard.\118\
---------------------------------------------------------------------------
\117\ 29 U.S.C. Sec. 654(a).
\118\See, e.g., Wiley Organics, Inc. v. OSHRC, 124 F.3d 201 (6th
Cir. 1997); Whirlpool Corp. v. OSHRC, 645 F.2d 1096 (D.C. Cir. 1981);
National Realty & Constr. Co. v. OSHRC, 489 F.2d 1257 (D.C. Cir. 1973).
---------------------------------------------------------------------------
The General Duty Clause is not a substitute for an
enforceable standard. During a review of OSHA's efforts to use
General Duty Clause enforcement in the early days of the COVID-
19 pandemic, OSHA officials admitted to the DOL Inspector
General (IG) that the General Duty Clause is ``harder to cite''
than a standard.\119\ The IG concurred, advising OSHA that a
standard with enforceable criteria would be more effective
given that ``violations are rarely issued'' under the General
Duty Clause.\120\ The record with respect to heat bears out
OSHA and the IG's perspective. From 2013 to 2017, California
used its heat standard to conduct 50 times more inspections
discovering heat-related violations than OSHA did nationwide
during the same period using the General Duty Clause.\121\
---------------------------------------------------------------------------
\119\U.S. Dep't of Lab., Off. of Insp. Gen., 19-21-003-10-105,
COVID-19: Increased Worksite Complaints and Reduced OSHA Inspections
Leave U.S. Workers' Safety at Increased Risk 12 (Feb. 25, 2021).
\120\Id.
\121\ 85+ Groups Endorse Workplace Heat Protection Bill, Pub. Cit.
(Oct. 8, 2020), https://www.citizen.org/article/85-groupendorse-
workplace-heat-protection-bill/#_edn14, at text accompanying note 14.
---------------------------------------------------------------------------
One of the disincentives to use of the General Duty Clause
for heat stress may be the Occupational Safety and Health
Review Commission (OSHRC). OSHA operates under a split
enforcement model: OSHA inspectors issue citations, but
penalties for those citations are assessed by OSHRC, an
independent agency. An employer contesting a citation may file
a challenge before an OSHRC Administrative Law Judge (ALJ),
whose ruling may be reviewed at the Commission level by a panel
of Senate-confirmed commissioners. This model of splitting the
citation and assessment functions is very rare among federal
regulatory and enforcement agencies:
Only one other agency in the entire federal
government is the subject of a similar arrangement--the
Mine Safety and Health Administration (MSHA). In the
rest of the government, the Administrative Procedure
Act (APA) protects the rights of defendants without the
problems that result from the split-enforcement
arrangement.\122\
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\122\Thomas McGarity et al., Ctr. for Prog. Ref., White Paper No.
1003, Workers at Risk: Regulatory Dysfunction at OSHA 21 (2010)
(emphasis added).
OSHRC and its ALJs have previously been receptive to
General Duty Clause citations for heat-related hazards.\123\ In
fact, an ALJ once rejected a case about failure to require PPE
in a molten steel operation precisely because the PPE could
intensify heat stress and lead to heat-related illness.\124 \At
other times, OSHRC and its ALJs have rejected General Duty heat
cases, not because heat is incompatible with the General Duty
Clause but as a result of intensely critical scrutiny of DOL's
case.\125\ More recently, however, in the Commission-level
decision Sturgill\126\ and an ALJ-level decision in five
related cases involving the U.S. Postal Service (USPS),\127\
OSHRC has signaled that it is no longer willing to receive such
cases at all.
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\123\Duriron Co., No. 77-2847, 1983 OSAHRC LEXIS 121 (OSHRC Apr.
27, 1983), aff'd by Duriron Co. v. Sec'y of Lab., 750 F.2d 28 (6th Cir.
1984); U.S. Post. Serv., No. 13-0217, 2014 OSAHRC LEXIS 63 (OSHRC ALJ
Sept. 24, 2014); Post Buckley Schuh & Jernigan, Inc., No. 10-2587, 2012
OSAHRC LEXIS 20 (OSHRC ALJ Mar. 15, 2012) (accepting General Duty
Clause citation for heat stress in an archaeological field work site).
\124\Oberdorfer Indus., Inc., Nos. 97-0469 & 97-0470, 2003 OSAHRC
LEXIS 82 (OSHRC ALJ Aug. 29, 2003).
\125\Scrutiny See, e.g., Indus. Glass, No. 88-348, 1992 OSAHRC
LEXIS 34 (OSHRC Apr. 21, 1992); Aldridge Elec., Inc., No. 13-2119, 2016
OSAHRC LEXIS 62 (OSHRC ALJ Dec. 2, 2016).
\126\Sec'y of Lab. v. A.H. Sturgill Roofing, Inc. (Sturgill II),
No. 13-0224, 2019 OSAHRC LEXIS 7 (Rev. Comm'n Feb. 28, 2019).
\127\The five unpublished decisions in cases from across the
country were issued on the same day:
(1) Sec'y of Lab. v. U.S. Postal Serv. (USPS Heat I), No. 16-1713
(OSHRC ALJ July 15, 2020) (addressing claims from San Antonio, Texas);
(2) Sec'y of Lab. v. U.S. Postal Serv. (USPS Heat II), No. 16-
1813 (OSHRC ALJ July 15, 2020) (addressing claims from Des Moines,
Iowa);
(3) Sec'y of Lab. v. U.S. Postal Serv. (USPS Heat III), No. 16-
1872 (OSHRC ALJ July 15, 2020) (addressing claims from Benton,
Arkansas);
(4) Sec'y of Lab. v. U.S. Postal Serv. (USPS Heat IV), No. 17-
0023 (OSHRC ALJ July 15, 2020) (addressing claims from Houston, Texas);
and
(5) Sec'y of Lab. v. U.S. Postal Serv. (USPS Heat V), No. 17-0279
(OSHRC ALJ July 15, 2020) (addressing claims from Martinsburg, West
Virginia).
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Sturgill involved an incident in which a temporary employee
for a roofing contractor developed heat stroke and later died.
It appears, at first blush, to be the classic case of bad facts
making bad law: it was not particularly hot on the day in
question, the worker in question was older with a prior history
of heart disease, and the work itself was light to moderate--at
least, that is, according to the majority opinion at the
Commission level. In a lower decision at the ALJ level,\128\
however, the facts of the case indicate several classic
hallmarks of heat stress. The following side-by-side highlights
the contrasting presentation of facts relevant to heat stress:
---------------------------------------------------------------------------
\128\A.H. Sturgill Roofing, Inc. (Sturgill I), No. 13-0224, 2015
OSAHRC LEXIS 10 (ALJ Feb. 23, 2015).
---------------------------------------------------------------------------
sturgill i (alj decision)
The flat, white, roof consisted of a rubber roofing
membrane over a layer of Styrofoam insulation. . . . To tear-
off the roof, employees removed the roofing materials and cut
the Styrofoam and rubber into smaller size pieces. . . . . The
Styrofoam pieces were light-weight. . . . The rubber pieces
weighed up to ten pounds each. The materials were loaded onto a
cart and moved to a staging area at the roof edge, where the
materials were lifted over a 39[-] inch parapet wall and thrown
into a dump truck below.
[The foreman] recalled that the temperature that morning
was in the 80s with a predicted high that day of [89+F]. . . .
. That morning the hourly high temperatures ranged from [72+F]
to [83+F]. . . . . Much of the roofing work performed . . .
that morning, as the noon hour approached, was in direct
sunlight . . . . [The foreman] provided no training to [the
temporary employee] on heat-related hazards or on recognizing
the signs and symptoms of heat-related illness. . . .
[The foreman] stated that he didn't want [the temporary
employee] to pull the cart of discarded materials . . . because
it was heavy and sometimes it took two people to move the cart.
Other employees put the discarded roofing materials in the cart
and then took the cart to [the temporary employee] for
disposal. [The temporary employee] was assigned to take the
materials, remove them from the cart, lift them over the 39-
inch parapet wall, and toss them into the dump truck
below.\129\
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\129\Sturgill I, 2015 OSAHRC LEXIS 10, at *3-*10 (emphasis added).
---------------------------------------------------------------------------
sturgill ii (commission decision)
Removing the building's existing roof consisted of tearing
off a single-ply sheet rubber membrane and Styrofoam insulation
under that membrane so that a new roof could be installed . . .
. One of the temporary employees was . . . a 60-year-old man
with various preexisting medical conditions, including
hepatitis C and congestive heart failure. . . . He began work
that day at 6:30 a.m. and was tasked with standing near the
edge of the roof where other employees brought him a cart full
of cut-up pieces of roofing material that he then pushed off
the roof into a dumpster below. . . . When [he] began his work,
the temperature was approximately 72+F with 84 percent relative
humidity. There is no dispute that [the foreman] encouraged all
employees to utilize the immediate access to ice, water, rest,
and shade, without fear of reprisal.\130\
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\130\Sturgill II, 2019 OSAHRC LEXIS 7, at *3-*4 (emphasis added).
As the dissenting opinion in Sturgill II observes, the
majority's compressed accounting of the case disregarded
---------------------------------------------------------------------------
important facts relevant to heat stress:
[M]y colleagues fail to factor into their analysis of
the heat index [the foreman's] testimony regarding the
temperature on the roof on August 1. In his transcribed
statement to the compliance officer, [the foreman] was
asked whether the temperature on the roof was hotter
than on the ground. He answered, ``[it] was about a
10[-]degree difference.'' There is every reason to
credit [his] testimony in this regard: he has done
roofing work for eighteen years, and therefore, has
surely developed an understanding of the difference in
temperature that can exist between the roof and the
ground. Moreover, he had no incentive to exaggerate
this number. Taking [his] unrebutted statement into
account, the heat index on the roof would have been in
the ``extreme caution'' zone.\131\
---------------------------------------------------------------------------
\131\Sturgill II, 2019 OSAHRC LEXIS 7, at *54 (Atwood, Comm'r,
dissenting).
Additionally, as the dissent observed, the majority
highlighted the worker's age and prior medical history despite
testimony from the coroner that the worker's preexisting
condition may have made the worker ``more likely to succumb''
to heat-related illness but not ``to cause the elevated body
temperature.''\132\
---------------------------------------------------------------------------
\132\Id. at *56-*57 (Atwood, Comm'r, dissenting).
---------------------------------------------------------------------------
Moreover, the majority appeared to go out of its way to
find a reason to reject DOL's case. In its discussion about one
of the General Duty Clause elements (the existence of a
feasible means of reducing the risk), the majority read DOL's
argument so tendentiously that it effectively rewrote DOL's
case. DOL argued that Sturgill failed to develop a heat-related
illness and injury prevention program which could have included
at least five reasonable measures such as a formal work/rest
schedule and acclimatization policy. The majority professed to
find the argument ambiguous: was DOL arguing, the majority
asked, that these five measures are all elements of an overall
program that would have been feasible to adopt in order to
prevent illness, or was DOL arguing that these were five
separate alternatives?\133\ Of course, there was a ready way to
resolve any actual ambiguity: OHSRC's own ``basic axiom that
citations are to be construed liberally.''\134\ Additionally,
as the dissent pointed out, there was ample reason to take DOL
at its word that its theory of the case was, indeed, the theory
of the case, especially since both Sturgill's response and the
ALJ's decision reflected the same understanding.\135\
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\133\Id. at *29-*30 (``[W]e must first determine whether the
Secretary proposed each measure as an alternative means of abatement,
in which case implementing any one of them would constitute abatement
of the alleged violation, or as a component of a single means of
abatement, in which case all of the measures must be implemented to
abate the violation. If the former, the Secretary can prevail on this
element only if he proves that Sturgill implemented none of the
measures. If the latter, he need only show a failure to implement one
of them.'') (citation omitted and emphasis added).
\134\Id. at *71-*72 (Atwood, Comm'r, dissenting).
\135\Id. at *69-*80 (Atwood, Comm'r, dissenting).
---------------------------------------------------------------------------
Nevertheless, the majority arrogated to itself the power to
reinterpret DOL's theory of the case. Now, instead of reviewing
DOL's actual argument that Sturgill could feasibly have
prevented the employee's death by adopting a five-point program
of PPE, rest, monitoring, removal, and acclimatization, OSHRC
decided that Sturgill could prevail if it had implemented any
one of the five points of the program in isolation.\136\ With
this new restatement of the case, the majority sided with
Sturgill that it had implemented two out of the five points and
concluded that DOL had failed to make its case.\137\
---------------------------------------------------------------------------
\136\Id. at *31.
\137\Id. at *35-*36.
---------------------------------------------------------------------------
Its shaky reasoning notwithstanding, the message of the
Sturgill II opinion was clear: OSHRC will not treat kindly any
OSHA citations of the General Duty Clause related to heat
stress. That message appears to have been heard in the OSHRC
ALJ ranks. In a recent set of five cases from across the
country alleging that USPS failed to protect letter carriers
from heat-related illness, OSHRC ALJ Sharon D. Calhoun noted
that, although OSHRC ``has not held absolutely that `excessive
heat' is not a cognizable hazard'' for General Duty Clause
purposes, ``[t]he cited hazard is, however, difficult to
establish under [Sturgill II].''\138\ She found it
``difficult'' despite the obviousness of the hazard, USPS's
acknowledgment of the hazard, and repeated evidence of multiple
conditions of employment in USPS's control that likely
contributed to workers' illnesses:
---------------------------------------------------------------------------
\138\USPS Heat III, at 49.
---------------------------------------------------------------------------
The distinctive USPS Long Life Vehicles
(LLVs) lack air conditioning, and the window opposite
the driver's side cannot be rolled down while the
letter carrier is driving and therefore tends to remain
up. When a delivery route includes segments in which
the letter carrier parks and walks between houses,
letter carriers can leave the LLV windows down to try
to release hot air only for as long as the LLV is
within their line of sight; otherwise, the windows must
be up and the vehicle secured. Routes may or may not
include periods in which the LLV is parked in shade.
LLVs become so heated that letter carriers describe the
floorboards and other internal surfaces as being too
hot to touch.\139\
---------------------------------------------------------------------------
\139\Id. at 10-11.
---------------------------------------------------------------------------
``[T]he records in the five [USPS] cases,
across five cities,'' wrote the ALJ, ``demonstrate
rural and city carriers experience near-constant
pressure to complete their routes faster and to
discourage them from taking breaks, reporting injuries
or illnesses, or calling in sick.''\140\ In two of the
cases, workers reported that supervisors hide paperwork
required to take additional time during a route or to
obtain a medical release.\141\ Workers reported threats
of discipline or other retaliation for taking time off
to recover from heat-related illness and for requesting
a period of acclimatization with indoor work
assignments upon return from medical leave.\142\ Even a
supervisor in one case reported being pressured by a
higher level manager against informing workers to take
extra breaks.\143\ This culture of time pressure is
aided by technology that tracks carriers' movements and
alerts supervisors when carriers have stopped for too
long.\144\
---------------------------------------------------------------------------
\140\Id. at 42.
\141\USPS Heat II, at 12; USPS Heat III, at 15.
\142\USPS Heat II, at 16-17.
\143\Id. at 20.
\144\Id.; USPS Heat V, at 15.
---------------------------------------------------------------------------
Supervisors were alleged to have failed to
act in the face of symptoms of heat-related illness.
Workers reported being ordered back to work or being
given yet more work despite reporting symptoms of heat-
related illness.\145\ One supervisor allegedly told a
letter carrier not to stop work without delivering all
mail unless the worker was leaving in an
ambulance.\146\ Another worker reported experiencing
headaches, nausea, and even memory loss, and her
supervisor allegedly responded simply with a few
bottles of water.\147\ The record of the cases includes
multiple accounts of workers attempting to use
messaging tools to signal that they were in medical
emergency situations only to receive no follow-up.\148\
The supervisors may have been insufficiently trained;
in one case, a route examiner was actually riding along
with a letter carrier while his symptoms progressed to
the point of acute renal failure.\149\
---------------------------------------------------------------------------
\145\USPS Heat II, at 2; USPS Heat V, at 12, 14.
\146\ USPS Heat I, at 13.
\147\USPS Heat II, at 2.
\148\USPS Heat I, at 13; USPS Heat II, at 11; USPS Heat III, at 18.
\149\USPS Heat V, at 9-11.
---------------------------------------------------------------------------
A regional manager in one case testified
that he ``places the primary responsibility for
preventing heat-related illnesses on the carrier.''\
150\ Employers cannot, of course, completely abdicate
their responsibility like this, but an employer relying
so heavily on workers to protect themselves must at
least provide them more information and training than
USPS workers reported in these cases. An OSHRC ALJ in
an unrelated case in 2014 found that USPS's program for
providing information to workers on heat stress ``was,
at best, informal,'' with workers receiving information
that was ``fairly basic.''\151\
---------------------------------------------------------------------------
\150\USPS Heat III, at 21.
\151\Sec'y of Lab. v. U.S. Postal Serv., No. 13-0217 (OSHRC ALJ
Oct. 24, 2014), at 8-9.
---------------------------------------------------------------------------
Evidence that USPS's ``standup talks'' and other
educational efforts are insufficient abounds in these
cases: in one case, for example, an apparently
inadequately trained worker reported not using a van's
air conditioning for fear of shocking his system by
switching from hot to cold,\152\ while a worker in
another case reported having no training at all.\153\
---------------------------------------------------------------------------
\152\USPS Heat I, at 11.
\153\USPS Heat II, at 19.
A standard, in comparison to the General Duty Clause, would
enable OSHA to specify the means by which an employer is
expected to protect employees from hazards such as heat stress.
Still, something is lost just the same by OSHRC's refusal to
allow enforcement under the General Duty Clause. A standard
might not capture all the ways that an employer puts workers at
risk from heat stress, and climate change could accelerate past
current projections and create hazardous conditions beyond what
OSHA might contemplate today.
Slow Pace of Rulemaking
OSHA took a small step in the rulemaking process for a heat
standard in October 2021 by publishing an Advance Notice of
Proposed Rulemaking (ANPR).\154\ It was a welcome development,
inasmuch as any step forward is better than no step at all.
Waiting for this process to play out under the OSH Act,
however, could still mean that workers will not have a heat
standard for decades.
---------------------------------------------------------------------------
\154\Heat ANPRM, supra note 14.
---------------------------------------------------------------------------
The Committee observed back in 1994 that preliminary steps
short of a proposed rule achieve little value while adding
unnecessary time to the rulemaking process:
Beginning in 1981, OSHA routinely issued an [ANPR]
prior to beginning the regulatory process. This device
adds several years to the process, but Agency officials
have admitted that they rarely obtain useful
information this way and the United States Court of
Appeals for the District of Columbia Circuit has
concluded that it should not ``allow an ANPR to cause
undue deferral of already much-delayed action.'' OSHA
rarely used an ANPR before 1981. . . .\155\
---------------------------------------------------------------------------
\155\H.R. Rep. No. 103-825, Part 1, at 66 (1994) [hereinafter 1994
Committee Report].
Making the same point, a Senate committee added the
---------------------------------------------------------------------------
following:
More recently, OSHA added yet another pre-regulatory
step--the request for information--which has further
slowed OSHA's rulemaking efforts, most notably on its
indoor air standard.\156\
---------------------------------------------------------------------------
\156\ S. Rep. No. 102-453 (1992), at 43.
Even in the best of circumstances, the OSH Act rulemaking
process is much too slow. The OSH Act was not even ten years
old before Congress had grown concerned about the slow pace of
OSHA rulemaking.\157\ That concern has persisted through the
decades since.\158\
---------------------------------------------------------------------------
\157\See, e.g., Performance of the Occupational Safety and Health
Administration: Hearing Before the Manpower & Housing Subcomm. of the
H. Comm. on Gov't Ops., 95th Cong. 87, 155, 160, 162 (1977). See also,
e.g., U.S. Comptr. Gen., HRD-77-71, Delays in Setting Workplace
Standards for Cancer-Causing and Other Dangerous Substances (1977).
\158\ See, e.g., Justice Delayed: The Human Cost of Regulatory
Paralysis: Hearing Before the Subcomm. on Ovrst., Fed. Rights & Agency
Action of the S. Comm. on the Judic., 113th Cong. (2013); Dangerous
Dust: Is OSHA Doing Enough to Protect Workers?: Hearing Before the
Subcomm. on Emp. & Wrkpl. Safety of the S. Comm. on Health, Educ., Lab.
& Pensions, 110th Cong. (2008); Time Takes Its Toll: Delays in OSHA's
Standard-Setting Process and the Impact on Worker Safety: Hearing
Before the S. Comm. on Health, Educ., Lab. & Pensions, 112th Cong.
(2012); Have OSHA Standards Kept up with Workplace Hazards?: Hearing
Before the Subcomm. on Wrkf. Prots. of the H. Comm. on Educ. & Lab.,
110th Cong. (2007); Is OSHA Working for Working People?: Hearing Before
the Subcomm. on Emp. & Wrkpl. Safety of the S. Comm. on Health, Educ.,
Lab. & Pensions, 110th Cong. (2007); Workplace Safety and Health:
Oversight of MSHA and OSHA Regulation and Enforcement: Hearing Before
the Subcomm. on Emp., Safety & Train. of the S. Comm. on Health, Educ.,
Lab. & Pensions, 107th Cong. (2002); One Year Later: Inadequate
Progress on America's Leading Cause of Workplace Injury: Hearing Before
the Comm. on Health, Educ., Lab. & Pensions, 107th Cong. (2002).
---------------------------------------------------------------------------
OSHA's standards process is ``among the most burdensome and
resource intensive of any agency in the federal
government,''\159\ so much so that standards often take decades
from start to finish, assuming they even finish at all. Hurdles
in the OSH Act process include the following:
---------------------------------------------------------------------------
\159\David Michaels & Jordan Barab, The Occupational Safety and
Health Administration at 50: Protecting Workers in a Changing Economy,
110 Am. J. Pub. Health 631, 633 (2020).
---------------------------------------------------------------------------
OSHA must hold a public hearing for a
proposed rule if any person requests one during the
comment period,\160\ and employer interests can exploit
this requirement to extend the timeline. For example,
in the ill-fated OSHA rulemaking on indoor air quality,
OSHA scheduled public hearings to take place July 12-
26, 1994.\161\ After multiple requests for additional
time, additional scheduling to accommodate the large
number of people wishing to participate, and an ALJ
order postponing hearings ``to permit time to develop a
better record,'' the public hearings did not actually
end for another five months.\162\
---------------------------------------------------------------------------
\160\OSH Act Sec. 6(b)(3) (29 U.S.C. Sec. 655(b)(3)).
\161\Indoor Air Quality, 59 Fed. Reg 15,968 (Apr. 5, 1994).
\162\Notice of Proposed Rulemaking; Schedule Changes and Hearing
Locations, 59 Fed. Reg. 49,874 (Sept. 30, 1994); Notice of Proposed
Rulemaking; Change of Hearing Location, Extension of Hearing Dates, and
Clarification of Hearing Issues, 59 Fed. Reg. 47,570 (Sept. 16, 1994);
Extension of Comment Period and Rescheduling of Public Hearing, 59 Fed.
Reg. 30,560 (June 14, 1994).
---------------------------------------------------------------------------
OSHA must also develop a particularly robust
record because the standard of review in any court
challenge is whether the agency's determinations are
based on ``substantial evidence,''\163\ a more
demanding standard\164\ than the Administrative
Procedure Act's (APA)\165\ test of whether a decision
is arbitrary and capricious.\166\
---------------------------------------------------------------------------
\163\Id. Sec. 6(f) (29 U.S.C. Sec. 655(f)).
\164\Revae Moran, Gov't Accountability Off., GAO-12-602T, Workplace
Safety and Health: Multiple Challenges Lengthen OSHA'S Standard Setting
6 (2012).
\165\5 U.S.C. Sec. 551 et seq.
\166\Compare Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951)
(explaining ``substantial evidence'' review) with Citizens to Preserve
Overton Park v. Volpe, 401 U.S. 402 (1971) (establishing ``arbitrary
and capricious'' review).
---------------------------------------------------------------------------
For health standards, the U.S. Supreme Court
has interpreted the OSH Act to, in effect, require OSHA
to develop quantitative risk assessments.\167\ These
risk assessments, which must be detailed enough to
satisfy this requirement with substantial evidence, can
be time- and resource-intensive. In the indoor air
quality rulemaking, for example, developing a risk
assessment involved methodological issues so complex
that OSHA resorted to sponsoring a workshop with the
Johns Hopkins University School of Hygiene and Public
Health on the topic.\168\
---------------------------------------------------------------------------
\167\Indus. Union Dep't, AFL-CIO v. Marshall (Benzene), 448 U.S.
607 (1980).
\168\Notice of Meeting, 63 Fed. Reg. 34,934 (June 26, 1998).
---------------------------------------------------------------------------
In the abstract, a feasibility-oriented
approach to rulemaking is often considered superior to
cost-benefit approaches in forcing agencies to adopt
the highest level of protection that can reasonably be
considered achievable.\169\ In practice under current
law, however, it is yet another burden in OSHA's
regulatory process. Appeals courts have interpreted the
OSH Act to demand detailed findings about the economic
and technological feasibility of a proposed standard
for every affected industry.\170\ As with any other
analysis under the OSH Act, OSHA must back its findings
sufficiently to meet the substantial evidence test
mentioned above. Given that most OSHA standards have a
broad reach spanning many industries across the
economy, that can be a significant hurdle. It was so
daunting in the indoor air quality rulemaking that OSHA
convened a technical panel with the American Conference
of Governmental Industrial Hygienists to discuss the
feasibility of engineering controls in just the
hospitality sector.\171\
---------------------------------------------------------------------------
\169\See, e.g., Gregory C. Keating, Is Cost-Benefit Analysis the
Only Game in Town?, 91 So. Cal. Law Rev. 195 (2018); David M. Driesen,
Douglas A. Kysar & Amy Sinden, Cost-Benefit Analysis: New Foundations
on Shifting Sand, 3 Reg & Gov. 48, 63-56 (2009); David M. Driesen,
Distributing the Costs of Environmental, Health, and Safety Protection:
The Feasibility Principle, Cost-Benefit Analysis, and Regulatory
Reform, 32 B.C. Envtl. Aff. L. Rev. 1 (2005); Wendy E. Wagner, The
Triumph of Technology-Based Standards, 2000 U. Ill. L. Rev. 83, 92-107.
\170\American Iron & Steel Inst. v. OSHA, 939 F.2d 975, 980 (D.C.
Cir. 1991); United Steelworkers v. Marshall, 647 F.2d 1189, 1264-66
(D.C. Cir. 1980).
\171\Notice of Meeting, 63 Fed. Reg. 29,035 (May 27, 1998).
---------------------------------------------------------------------------
Incidentally, the indoor air quality rulemaking used as an
example above took eight years from its start in January 1993,
when the administration of President George H.W. Bush ordered
its initiation, to its demise in December 2001, when the
administration of President George W. Bush ordered its
termination without a rule being issued.\172\ Time is not the
friend of any OSH Act rulemaking.
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\172\Indoor Air Quality, 66 Fed. Reg. 64,946 (Dec. 17, 2001)
(abandoning rulemaking); Semiannual Agenda of Regulations, 61 Fed. Reg.
62748 (Nov. 29, 1996) (tracking early history of the rulemaking).
---------------------------------------------------------------------------
The rulemaking process is further burdened by mandates
beyond the OSH Act, which have been imposed on OSHA and other
agencies in the name of ``regulatory reform.''\173\ The
Paperwork Reduction Act requires review and approval by the
White House's Office of Management and Budget (OMB) of
information collections that ask ten or more persons the same
question--even in the case of purely voluntary surveys.\174\
The Regulatory Flexibility Act,\175\ Small Business Regulatory
Enforcement Fairness Act (SBREFA),\176\ and Unfunded Mandates
Reform Act of 1995\177\ all add various forms of expensive and
time-consuming analysis to the rulemaking process.
---------------------------------------------------------------------------
\173\Maeve P. Carey, Cong. Res. Serv., IF12058, Cost-Benefit
Analysis in Federal Agency Rulemaking (2022); Maeve P. Carey, Cong.
Res. Serv., 32240, The Federal Rulemaking Process: An Overview (2013);
Revae Moran, Gov't Accountability Off., GAO-12-602T, Workplace Safety
and Health: Multiple Challenges Lengthen Osha's Standard Setting
(2012).
\174\44 U.S.C. Sec. 3501 et seq.
\175\5 U.S.C. Sec. 601 et seq.
\176\Id.
\177\2 U.S.C. Sec. 1501 et seq.
---------------------------------------------------------------------------
Political review at OMB, mandated currently under Executive
Order 12,866,\178\ is yet another source of rulemaking delay
that this Committee took note of in the 1990s:
---------------------------------------------------------------------------
\178\Exec. Order No. 12866, Regulatory Planning and Review, 58 Fed.
Reg. 51,735 (Oct. 4, 1993).
OMB review has added several years to a standard's
promulgation process. In the case of the ethylene oxide
(EtO) standard, OMB delayed the promulgation process by
almost seven years. OMB refused to approve promulgation
of OSHA's grain dust standard because it objected to
the standard's approach and released the standard only
after OSHA agreed to water down the substance of its
proposal.\179\
---------------------------------------------------------------------------
\179\1994 Committee Report, supra note 155, at 66.
These broad regulatory process requirements apply to
regulatory agencies across the board, but SBREFA has a
particular impact on OSHA standards. SBREFA adds special
mandates for business representatives to review and be
consulted on draft regulations, and these mandates apply to
only three agencies: the Environmental Protection Agency, the
Consumer Financial Protection Bureau, and OSHA.\180\ The Office
of Advocacy, an independent office housed in the Small Business
Administration, implements SBREFA and describes itself as the
advocate for business interests, not administration
policy.\181\ It is not entirely clear, however, that this
process actually highlights legitimate small business
views.\182\
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\180\5 U.S.C. Sec. Sec. 603, 604, 609.
\181\Alarmingly, the Office of Advocacy's most recent annual report
proudly claims to have weakened OSHA's Emergency Temporary Standard to
protect health care workers from COVID-19 exposure, putting at risk
workers in health care businesses with fewer than 10 employees. Off. of
Advoc., U.S. Small Bus. Admin., Report on the Regulatory Flexibility
Act, FY2021: Annual Report of the Chief Counsel for Advocacy on
Implementation of the Regulatory Flexibility Act and Executive Order
13272, at iii-iv (2022).
\182\See Gov't Accountability Off., GAO-14-525, Small Business
Administration: Office of Advocacy Needs to Improve Controls over
Research, Regulatory, and Workforce Planning Activities 17 (July 2014)
(finding that the Office of Advocacy's policies do not require staff to
demonstrate that they have actually met with relevant small business
representatives who would be able to verify that they have sufficient
information and data to justify intervening in particular rules).
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For these reasons and more, OSHA rulemakings take a very
long time to move from conception to completion. OSHA's
timeline of its rulemaking process suggests that the process
takes 56-150 months.\183\ In 2012, the Government
Accountability Office (GAO) studied the rulemakings OSHA
published from 1981 to 2010 and concluded the process took on
average more than seven years.\184\ This period includes
rulemakings initiated long before some of the court decisions
and delaying policies noted earlier.
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\183\The OSHA Rulemaking Process, Occ. Safety & Health Admin.,
https://www.osha.gov/sites/default/files/OSHA_FlowChart.pdf (last
visited Aug. 4, 2022).
\184\Id.
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The most recent major OSHA health standard to be
successfully promulgated, the Obama Administration's silica
standard, exhibits the effects of all those factors. Added to
the rulemaking agenda in 1997, the standard was not published
until 19 years later. (``Better late than never,'' then-
Secretary of Labor Tom Perez said upon its final release three
years after it had been submitted to OMB.\185\) That delay cost
an estimated 12,198 workers' lives.\186\
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\185\Tim Devaney, OSHA Issues Long-Delayed Silica Rules, The Hill
(Mar. 24, 2016), https://thehill.com/regulation/labor/274187-osha-
issues-long-delayed-silica-rules/.
\186\AFL-CIO, Death on the Job: The Toll of Neglect 109 (26th ed.
2017).
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How long it might take OSHA to produce a final heat
standard is difficult to predict. What is not difficult to
predict is whether OSHA, left to its own devices, will be
enforcing a final standard before the end of the current
administration. When pressed on timing of a final heat standard
during the May 25 Hearing, Assistant Secretary of Labor for
Occupational Safety and Health Doug Parker was unable to commit
to publishing a final rule by spring 2024.\187\
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\187\Examining the Policies and Priorities of the Occupational
Safety and Health Administration: Hearing Before the Subcomm. on Wrkf.
Prots. of the H. Comm. on Educ. & Lab., 117th Cong. (2022) (video at
https://www.youtube.com/watch?v=1IqQ-5QViTs (1:10:49-1:11:55)).
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CURRENT LAW DOES NOT GUARANTEE EFFECTIVE PROTECTION
Even if OSHA found the wherewithal to publish a final
standard before the end of this administration, there are still
some outstanding concerns about OSHA's capacity under current
law to use the standard to protect workers.
A significant challenge is whether OSHRC will undermine
OSHA when it undertakes enforcement:
Employers' challenges to OSHA citations can take many
years to resolve and, in the meantime, the employer can
delay abatement of the cited hazard. At times, OSHRC
has been without its full complement of commissioners
because of disputes between the President and the
Senate over certain nominees. A partial commission can
be responsible for significant delays in the appellate
process. OSHA, however, has no means of insisting that
OSHRC do a more efficient job of resolving claims.
Moreover, OSHRC works as a one-way ratchet: employers
can challenge OSHA citations, but employees and their
representatives have no power to challenge the terms of
settlement agreements between employers and OSHA.
Unlike settlement agreements negotiated under the Clean
Air Act and other public health-related statutes,
OSHA's settlements are not subject to public review and
comment.
Another problem with the split-enforcement model is
its effect on OSHA's ability to interpret the OSH Act
and its regulations to protect workers. For years after
Congress passed the OSH Act, OSHRC took the position
that Congress, by granting the Commission the power to
adjudicate disputes about OSHA citations, gave it the
power to make broad policy determinations. OSHA, on the
other hand, argued that
OSHRC should accept OSHA's interpretations of the OSH
Act and simply engage in case-specific fact-finding to
affirm, modify, or vacate individual OSHA citations and
penalties. In 1991, in Martin v. OSHRC, the Supreme
Court sided with OSHA in holding that reviewing courts
must defer to OSHA's interpretation of the OSH Act
contained in its regulations when confronted with
conflicting, but reasonable, interpretations held by
OSHA and OSHRC.
Notwithstanding the Supreme Court's unambiguous
recognition of OSHA's fundamental supremacy in setting
occupational safety and health policy, OSHRC keeps
fighting to retain policymaking power by reading the
Supreme Court's opinion in a narrow manner. OSHRC's
trick is to argue that OSHA's reading of its own
standards or the OSH Act are unreasonable, allegedly
making Martin inapplicable and giving OSHRC the power
to decide the case based on its own interpretation. In
one case, OSHRC used that approach, was overturned by
the Eighth Circuit, and drafted such a narrow follow-up
decision that one prominent attorney for large
employers suggested OSHRC's interpretation of the
relevant law might apply everywhere but the Eighth
Circuit.
Until OSHRC is directed to defer to OSHA's
policymaking decisions, disputes between the two
institutions will continue to arise, sowing seeds of
confusion for employers, employees, and OSHA
inspectors.\188\
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\188\McGarity et al., supra note 122, at 20-21.
It may be time to revisit altogether the split-enforcement
model. Until then, a standard promulgated pursuant to the OSH
Act will always be vulnerable to this policymaking tug-of-war
between OSHA and OSHRC.
Even without OSHRC as an obstacle, OSHA is still up against
enormous odds when enforcing standards. Given the agency's
meager budget, OSHA inspectors are each responsible for
covering approximately 81,000 workers.\189\ In 2019, the last
pre-pandemic year that enforcement capacity was measured, OSHA
had enough inspectors to inspect every workplace in its
jurisdiction only once every 162 years.\190\
---------------------------------------------------------------------------
\189\AFL-CIO, Death on the Job: The Toll of Neglect 3 (31st ed.
2022), https://aflcio.org/sites/default/files/2022-04/
2214_DOTJ_Final_42622_nobug.pdf.
\190\Id. at 63.
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These inspectors must move quickly. The statute of
limitations for harming or killing a worker is much more
circumscribed than that for other federal regulatory
violations. In the OSH Act, the limit for an enforcement
citation is a mere six months. The default federal statute of
limitations for civil enforcement, by contrast, is 10 times
longer.\191\ Between limited resources and a tight statute of
limitations, OSHA is in a race against time to enforce the law.
It is too easy for low-road employers to win that race.
---------------------------------------------------------------------------
\191\28 U.S.C. Sec. 2462.
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The statute of limitations is even tighter for
whistleblowers. As the Committee's Subcommittee on Workforce
Protections heard in 2010, the OSH Act has particularly weak
whistleblower protection provisions:
The statute of limitations is exceedingly short, only
30 days. There is no right under the OSH Act for
workers to get their job back, for preliminary
reinstatement while their cases are pending, and they
have no right to get a hearing before an administrative
law judge or a court. They are completely dependent on
the Secretary of Labor bringing their cases forward;
and, as we have heard, that rarely happens.
And the burdens on the Department of Labor are
significant as well. They can't pursue an
administrative process themselves. They need to go to
Federal District Court to pursue these whistleblower
cases in court.
So the law is extremely weak. There is a saying in
the law that rights without remedies are really no
rights at all; and, frankly, that is what we are
talking about here with the whistleblower protections
and the Occupational Safety and Health Act. The
provisions are so weak as to really be
meaningless.\192\
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\192\Whistleblower and Victim's Rights Provisions of H.R. 2067, the
Protecting America's Workers Act: Hearing Before the Subcomm. on Wrkf.
Prots. of the H. Comm. on Educ. & Lab., 111th Cong. 43-44 (2010)
(statement of Lynn Rhinehart, AFL-CIO General Counsel).
By contrast, all but two of the whistleblower laws that
OSHA enforces (in addition to its health and safety role)
include private rights of action.\193\ The statute of
limitations is much longer for whistleblowers under several of
those laws, ranging from 60 to 180 days.\194\
---------------------------------------------------------------------------
\193\Id. at 125.
\194\Id. at 120.
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Finally, the Supreme Court has created new cause for
concern about the viability of continuing to rely on the OSH
Act as the source of authority for a heat standard. In NFIB v.
OSHA\195\ and West Virginia v. EPA,\196\ the Court applied the
so-called ``Major Questions Doctrine'' to invalidate
regulations with broad effects on the economy that departed
from longstanding past agency practice in the absence of
specific congressional authorization for such departure. A heat
stress standard is bound to cover so many employers that it
will inevitably trigger the ``major'' part of this doctrine,
inviting the Court's hostile scrutiny. As climate change
accelerates, OSHA may in the future encounter a need to update
its standard further; in the course of doing so, the agency may
have an opportunity to exploit whatever new technology will
have evolved by then, in the form of a preventive measure that
looks unlike any measure OSHA has required in the past. This
potential innovation is similarly likely to run afoul of the
Major Questions Doctrine.
---------------------------------------------------------------------------
\195\Nat'l Fed'n of Indep. Bus. v. Dep't of Lab., 595 U.S. _, 142
S. Ct. 661 (Jan. 13, 2022).
\196\West Virginia v. Envtl. Prot. Agency, 595 U.S. _, 142 S. Ct.
2587 (June 30, 2022).
---------------------------------------------------------------------------
Additionally, in NFIB, the Court teased out a new
distinction in the OSH Act between occupational hazards and
broader public health hazards:
The question, then, is whether the [OSH Act] plainly
authorizes the Secretary's mandate. It does not. The
Act empowers the Secretary to set workplace safety
standards, not broad public health measures. See 29
U.S.C. Sec. 655(b) (directing the Secretary to set
``occupational safety and health standards'' (emphasis
added)); Sec. 655(c)(1) (authorizing the Secretary to
impose emergency temporary standards necessary to
protect ``employees'' from grave danger in the
workplace). Confirming the point, the Act's provisions
typically speak to hazards that employees face at work.
See, e.g., Sec. Sec. 651, 653, 657. And no provision of
the Act addresses public health more generally, which
falls outside of OSHA's sphere of expertise.\197\
---------------------------------------------------------------------------
\197\142 S. Ct. at 665.
The Court blithely dismissed employers' control over
employment and places of employment, the kind of control that
can turn an airborne infectious disease such as COVID-19 into
an occupational hazard when workers are required to show up in
person, work without PPE, or be threatened with loss of pay or
termination if they stay at home after contracting the illness.
At the right level of abstraction, any hazard can be said to
originate outside the workplace; no matter how endogenous or
exogenous a hazard is, the core concern is that employers can
determine whether the conditions of the job itself will
aggravate the risk to workers' lives. The extent to which this
new distinction will be applied in the future is uncertain, but
it is reasonable to fear that it could be used to put into
question any standard promulgated pursuant to the OSH Act that
regulates worker exposure to heat, especially ambient
environmental heat to which outdoor workers are exposed.
H.R. 2193 MANDATES MEANINGFUL ACTION TO PROTECT WORKERS FROM HEAT
STRESS
In light of the pressing need for workplace safeguards
against heat stress, the projected increase in even more
hazardous conditions for working people in this country as
climate change accelerates, and the inadequacy of current
policy tools for protecting workers, this Act demands action
and gives OSHA the tools it needs to get the job done.
Clear Authority on Occupational Heat Stress
To guard against the risk that the Supreme Court's
artificial distinction in NFIB between public and occupational
hazards could undermine the Secretary's authority to address
heat stress, the Act provides clear and unmistakable authority
for the Secretary to protect workers from this hazard.
A Mandate to Act
Workers cannot wait another 50 years for OSHA to develop
effective safeguards for workers. The Act requires swift action
to produce a standard that provides the highest achievable
level of protection and makes it possible for the agency to
keep its standards up to date:
Section 3(a) requires the Secretary to
address heat-related illness and injury by developing a
worker heat protection standard that is the maximum
protective program of measures to protect workers from
heat stress to the extent feasible. It demands the
highest attainable degree of protection.
Section 3(a)(3)(B) addresses the Major
Questions Doctrine by providing clear congressional
authority for the Secretary to use the broad tools at
its disposal flexibly and creatively over time, given
the volatility of climate change and the prospect that
technological or practice innovations could enable new
kinds of approaches to protecting workers from heat
stress. The Act already includes numerous limits on the
Secretary's exercise of the authority delegated by it;
there is no need for the prospect of a judicially
created limit on creativity or deviation from past
practice to hold the Secretary back from doing what is
necessary and appropriate in the future to protect
workers from heat stress.
Section 3(b) requires the Secretary to
publish an interim final rule to establish a worker
heat protection standard within one year of enactment.
Section 3(c) provides processes for future
heat-related rulemakings. When Congress has required
OSHA rulemakings in the past, historically the mandate
has stopped at some equivalent of this Act's section
3(b): a requirement to produce a standard by a date
certain.\198\ The climate crisis, however, is
progressing, and so there may be a need for the
standard to be updated soon. Section 3(c) authorizes
additional rulemaking on heat stress in the future
under the process established by this Act.
---------------------------------------------------------------------------
\198\See, e.g., Needlestick Safety and Prevention Act, Pub. L. No.
106-430 (Nov. 6, 2000) (requiring update to 29 C.F.R. Sec. 1910.1030);
Residential Lead-Based Paint Hazard Reduction Act of 1992, Pub. L. No.
102-550, Sec. 1031 (Oct. 28, 1992) (requiring interim final rule on
lead in construction).
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Protection for the Most Vulnerable
In light of the elevated risk for immigrant and
agricultural workers, the Act also includes targeted provisions
to ensure meaningful protections for those populations:
Section 3(a)(4)(A) directs the Secretary to
require that employees shall be paid at their regular
rate during any rest breaks, training, medical removal
protection, or other such periods of time required
under a worker heat protection standard. This provision
is of particular importance for farmworkers, who are
typically paid on a piece-rate basis that incentivizes
working hard and minimizing breaks.\199\
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\199\Michelle Tigchelaar et al., Work Adaptations Insufficient to
Address Growing Heat Risk for U.S. Agricultural Workers, 15 Envtl. Res.
Letters 094035, https://iopscience.iop.org/article/10.1088/1748-9326/
ab86f4; Bo Johansson et al., Piece Rates and Their Effects on Health
and Safety, 41 App. Ergo. 607 (2010).
---------------------------------------------------------------------------
Section 3(a)(4)(B) mandates that the
Secretary shall require employers to provide any
training, hazard alerts, or other information or
education pursuant to the Act in the language employees
understand, if it is not English, and gear it to their
literacy and education level.
Section 3(a)(4)(C) requires the Secretary to
update a standard on temporary labor camps, which
regulates the housing provided to migrant farmworkers.
Such housing ``is often designed to keep workers warm
rather than cool. In Washington, [for example,] some
cherry growers house their workers in tents that have
very limited ventilation,''\200\ which could limit
workers' ability to recover from work in hot
environments.
---------------------------------------------------------------------------
\200\Bustillo, supra note 71.
---------------------------------------------------------------------------
Section 6 requires the Secretary to include
questions in the National Agricultural Workers Survey
related to farmworkers' experience of heat stress and
matters relevant to aiding the implementation of the
Act for that workforce.
A Duty to Protect Employees
Given that OSHRC has placed in doubt whether the General
Duty Clause of the OSH Act applies to heat stress, this Act
reestablishes that an employer's general duty to protect
workers from recognized serious hazards extends to heat stress:
Section 2 of the Act establishes that
employers have a duty to provide employment and a place
of employment free from conditions that may reasonably
be anticipated to cause death or serious physical harm
from heat stress. As a parallel to the OSH Act's
General Duty Clause, this section clarifies an
employer's duty with respect to heat stress, thus
enabling OSHA to enforce that duty immediately upon
enactment while it works on a heat stress rulemaking.
Although similar to the OSH Act's General
Duty Clause, the duty established by section 2 avoids
some problems that have limited the utility of the
General Duty Clause:
The OSH Act's General Duty
Clause limits the employer's duty to ``each of
his employees.''\201\ Increasingly, however,
firms create workplaces in which employees work
for employers other than the host firm.\202\
OSHA in fact has an enforcement policy for what
it calls ``multi-employer worksites,'' in which
host employers can at times be cited for
standards violations by creating worksite
conditions that put workers at risk.\203\ This
Committee observed in 1994 that the multi-
employer worksite approach should be extended
to General Duty Clause citations as well.\204\
Section 2 of the Act addresses this problem by
omitting the limitation to an employer's own
employees, so that the multi-employer approach
can apply with respect to an employer's general
duty to prevent heat-related illness and
injury.
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\201\29 U.S.C. Sec. 654 (emphasis added).
\202\See David Weil, The Fissured Workplace: Why Work Became So Bad
for So Many and What Can Be Done About It (2014).
\203\Occ. Safety & Health Admin., CPL 02-00-124, Multi-Employer
Citation Policy (Dec. 10, 1999), https://www.osha.gov/enforcement/
directives/cpl-02-00-124.
\204\1994 Committee Report, supra note 155, at 63-64.
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The General Duty Clause is
ambiguous about whether it continues to apply
to a hazard if OSHA promulgates a standard
related to that hazard. Both OSHA and OSHRC
have taken the position that a standard can
preempt the General Duty Clause,\205\ although
two appeals courts have held that this is not
necessarily the case if an employer knows about
an obviously hazardous condition or knows that
hazard persists despite compliance with a
standard.\206\ Section 2 avoids that ambiguity
by clearly stating that an employer has a
general duty with respect to heat stress and a
duty to comply with standards.
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\205\See 29 C.F.R. Sec. 1910.5(f); Morrison-Knudsen Co./Yonkers
Contr. Co., Joint Venture, No. 88-572, 1993 OSAHRC LEXIS 52 (OSHRC Apr.
20, 1993), at *58-*62; Daniel Int'l, Inc., 10 OSH Cases 1556 (OSHRC
1982).
\206\Safeway v. OSHRC, 382 F.3d 1189 (10th Cir. 2004); UAW v. Gen.
Dynamics Land Sys. Div., 815 F.2d 1570 (D.C. Cir. 1987).
---------------------------------------------------------------------------
Tools to Develop Strong Standards Efficiently and Effectively
Given the insufficiency of the rulemaking pace that seems
to be possible under current law, this Act establishes a
process independent of the OSH Act and requires and enables
OSHA to act with urgency:
Section 3(b) requires the Secretary to
accelerate the rulemaking timeline and promulgate,
within one year of enactment, an interim final rule
establishing a standard on heat stress. To enable a
rulemaking to be completed so quickly, section 3(b)
authorizes the Secretary to proceed without regard for
some of the rulemaking burdens discussed above.
Section 3(c) requires the Secretary to act
on heat more quickly in any future rulemakings on heat
stress. Instead of leaving future rulemakings to the
OSH Act process, it points future rulemakings to the
APA and additional enforceable timelines so that
rulemakings do not languish for decades.
Section 3(c) also, by invoking the APA for
rulemaking and judicial review, unburdens heat-related
rulemakings from the substantial evidence test that
weighs down OSH Act rulemakings.
Section 3(a) reduces some of the burdens of
rulemaking analysis and considerations in rulemaking
design for both the interim final rule required by
section 3(b) and future rulemakings allowed by section
3(c):
It requires standards to be
feasible but eases the burden of feasibility
analysis not only by lifting the substantial
evidence burden but also by (1) enabling the
Secretary to presume that any measure in a heat
standard adopted and implemented for at least a
year by a state plan is feasible and (2)
empowering the Secretary to conduct feasibility
analysis and other rulemaking activities
without being narrowly bound by industry
categories, so that the Secretary can design
standards and project their likely impacts in
ways that are useful and make sense given the
inevitable vastness of a standard's scope.
It requires the Secretary to
proceed on the basis of the best available
evidence, but it does not require the Secretary
to reinvent the wheel. It authorizes the
Secretary to accept any relevant findings or
recommendations of established authoritative
experts, such as NIOSH, the National Academies
of Sciences, Engineering, and Medicine, and the
American Conference of Governmental Industrial
Hygienists.
Capacity for Effective Implementation
The Act sets the stage for effective implementation with
the following:
Section 4 provides that standards and rules
promulgated pursuant to this Act have the same legal
effect as any standards or rules under the OSH Act,
meaning that the OSH Act's provisions for enforcement,
replication in the states, and other matters apply
except as otherwise provided by this Act. To mitigate
some of the challenges under current law for
enforcement, at least with respect to standards on heat
stress, this section also provides the following:
It sets the statute of
limitations for enforcing violations of
standards or rules promulgated under this Act
at four years.
It ensures finality for
standards. As this Committee observed in 1994,
some courts have allowed employers to challenge
the validity under the OSH Act of standards
promulgated pursuant to section 6(a) of the OSH
Act during enforcement proceedings decades
after rulemaking comment periods had long since
ended.\207\ This section requires interested
parties to raise their objections during the
public comment period, giving the Secretary and
the public the opportunity to review them
before promulgating a final rule.
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\207\1994 Committee Report, supra note 155, at 68, 71.
---------------------------------------------------------------------------
It requires OSHRC to provide
substantial deference to the Secretary's
interpretation of the Act and any standards or
rules promulgated pursuant to it. The Secretary
has primacy in interpreting this Act and any
standard, rule, regulation, or order issued
pursuant to it.
It authorizes rulemaking for
recordkeeping and reporting. In order to avoid
any unnecessary duplication of forms or logs,
it allows the Secretary to consolidate any
requirements related to heat stress into
existing forms, provided that the Secretary can
enforce heat-related violations pursuant to
this Act rather than the OSH Act.
Finally, it sets a statute of
limitations for whistleblowers reporting
retaliation at 180 days and provides a private
right of action with fee shifting for any claim
that the Secretary does not decide to
prosecute.
In parallel with major environmental
laws,\208\ section 4 also requires that court
challenges to rulemakings be filed exclusively in the
D.C. Circuit Court. Under current law, by contrast,
challenges to standards may be filed in that circuit or
in any circuit in which the petitioner resides. The
result has been decades of circuit splits creating
confusion about the law; in the case of one of the OSHA
emergency standards for COVID+19, there was a legal
whiplash as a stay entered by one circuit was removed
by another.\209\ In light of this experience, when Rep.
Keller offered an amendment during the markup of this
Act to strip the judicial review provision focusing any
challenges on heat stress standards to the D.C.
Circuit, the Committee rejected it by a vote of 19 Yeas
and 27 Nays.
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\208\See, e.g., 42 U.S.C. Sec. Sec. 300j-7 (Safe Drinking Water
Act), 6976 (Resource Conservation and Recovery Act), 7607(b)(1) (Clean
Air Act).
\209\In re MCP No. 165, 21 F.4th 357 (6th Cir. 2021); BST Holdings,
LLC v. Occupational Safety & Health Admin., 17 F.4th. 604 (5th Cir.
2021).
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CONCLUSION
By requiring swift and meaningful action by OSHA, this Act
will ensure that workers are protected against occupational
heat stress and the entirely preventable risk of heat-related
illness, injury, and death.
It comes too late for Asuncion Valdivia, who died in 2004
after picking grapes for ten hours straight on a day that
reached 105 F. Instead of calling an ambulance after Mr.
Valdivia fell unconscious, his employer told Mr. Valdivia's son
to drive his father home. On the way home, Mr. Valdivia died of
heat stroke at the age of 53.\210\
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\210\House, Senate Democrats Introduce Heat Stress Legislation to
Protect Farm Workers, H. Comm. on Educ. & Lab. (Mar. 26, 2021), https:/
/edlabor.house.gov/media/press-releases/house-senate-leaders-introduce-
heat-stress-legislation-to-protect-farm-workers.
---------------------------------------------------------------------------
This Act ensures that the last word on Asuncion Valdivia's
life will not be the tragedy of his death; it will be the lives
saved in his name. This Act is named for him.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
This section establishes that the short title of this bill
is the Asuncion Valdivia Heat Illness and Fatality Prevention
Act of 2022.
Section 2. Duties
This section provides that employers have a general duty to
furnish employment and a place of employment free from
conditions that may reasonably be anticipated to cause death or
serious physical harm from heat stress. It also provides that
employers have a specific duty to comply with standards and
rules promulgated pursuant to this Act.
Section 3. Worker heat protection standards
This section authorizes the Secretary of Labor (Secretary)
to develop standards for the prevention of heat-related illness
and injury on the job.
Subsection (a) instructs the Secretary on the design of
such standards:
In general, it directs the Secretary to
develop, using the best available evidence, worker heat
protection standards that provide the maximum
protective program of measures to regulate occupational
heat stress, prevent heat-related illness and injury,
and attain the highest degree of health and safety
protection to the extent feasible.
It provides direction on the factors that
the Secretary may consider when designing a standard.
The Secretary is charged with prioritizing worker
safety, empowered to adopt certain outside expert
findings, and encouraged to replicate measures that
have been proven to work in the states. The Secretary
is also given flexibility when designing a standard or
conducting relevant rulemaking analysis to cluster
employers in whatever categories (such as standard
industrial codes or similar features of heat sources
that create risks for employees) the Secretary finds
useful.
It establishes the kinds of measures the
Secretary may include in a standard. The Secretary is
broadly empowered to adopt a range of protective
measures that are reasonable and appropriate to protect
workers from heat stress and to respond creatively to
changing conditions over time. Specifically, the
Secretary is required to establish criteria under which
an employer must implement some of the most basic
policies to prevent heat-related illness and injury:
paid rest breaks, water or other suitable hydration,
shaded or cooled spaces to recover from the heat, and a
program to help employees get acclimated to hot
conditions.
It spells out some additional specifications
for these standards. The Secretary must ensure that
workers, including piece-rate workers, are fully
compensated in any periods required under the standard
away from the usual job tasks (such as training and
paid rest breaks); that workers can understand training
and materials in their own language; and that a
standard on temporary labor camps is also updated to
the extent necessary to prevent heat illness.
Finally, it prohibits the Secretary, when
updating or revising heat standards in the future, from
rolling back existing protections and putting workers
at risk of heat-related illness and injury.
Subsection (b) requires the Secretary to promulgate a
standard in an interim final rule within one year of enactment,
which shall have the same legal effect as though it were an
occupational safety and health standard promulgated pursuant to
the OSH Act and will remain in effect until superseded by a
standard promulgated pursuant to this Act.
Subsection (c) sets out rulemaking procedural requirements
for any worker heat protection standard the Secretary may
develop in the future, after the interim final rule issued
pursuant to subsection (b).
It authorizes the Secretary to launch a
rulemaking on the Secretary's own initiative or in
response to a petition for rulemaking.
It establishes enforceable timelines. The
Secretary will be required to offer a substantive and
timely decision on any petitions for rulemaking under
this Act within 18 months. If the Secretary approves a
petition for rulemaking, the Secretary must issue a
proposed rule within one year. A proposed rule must
then be followed within one year by a final rule.
It requires the Secretary to maintain a
rulemaking docket that is transparent about any changes
made in the course of review coordinated by the White
House's Office of Management and Budget.
It spells out requirements for judicial
review of any standard. Any party may challenge a rule
in the courts only by filing a petition pursuant to the
APA within 60 days in the U.S. Court of Appeals for the
D.C. Circuit. Petitions for review, rather than
enforcement proceedings, are the forum for judicial
review of a standard. The timelines for rulemaking are
specifically enforceable.
Section 4. Implementation and enforcement
Subsection (a) provides that, except as otherwise provided
by this section, any standard, rule, regulation, or order under
this Act has the same legal effect as one promulgated under the
Occupational Safety and Health Act of 1970 (OSH Act).
Subsection (b) sets a 4-year statute of limitations for
citations and requires the Occupational Safety and Health
Review Commission (OSHRC) to grant substantial deference to any
reasonable interpretation by the Secretary of this Act or any
standard, regulation, or order pursuant to this Act.
Subsection (c) authorizes the Secretary and the Secretary
of Health and Human Services to require recordkeeping and
reporting to the same extent as under the OSH Act. The
Secretary may require recordkeeping and reporting using the
same forms and regulations pursuant to the OSH Act, provided
that any violation with respect to heat-related information is
treated as a separate and distinct violation from any
simultaneous OSH Act violation for the underlying log or
report.
Subsection (d) provides that employees have 180 days to
make a claim of retaliation or discrimination for exercising
rights under this Act and empowers them to file a civil action
for appropriate remedies and attorney's fees and costs if OSHA
fails to make a decision on the claim within 90 days or opts
not to pursue the case itself.
Section 5. General provisions
This section provides for severability and authorizes the
appropriation of such sums as may be necessary to carry out
this Act.
Section 6. Agenda for further review and action
This section directs the Secretary to update the National
Agricultural Workers Survey to include questions relevant to
measuring the incidence of heat-related illness and injury and
assessing the impact of this Act.
Section 7. Definitions
This section defines key terms, including heat stress and
heat-related illness and injury.
EXPLANATION OF AMENDMENTS
The amendments, including the Amendment in the Nature of a
Substitute, are explained in the descriptive portions of this
report.
APPLICATION OF LAW TO THE LEGISLATIVE BRANCH
Pursuant to section 102(b)(3) of the Congressional
Accountability Act of 1995, Pub. L. No. 104-1, H.R. 2193, as
amended, applies to terms and conditions of employment within
the legislative branch because the law governing its
implementation, the Occupational Safety and Health Act of 1970,
is included within the list of laws applicable to the
legislative branch enumerated in section 102(a) of the
Congressional Accountability Act of 1995.
UNFUNDED MANDATE STATEMENT
Pursuant to Section 423 of the Congressional Budget and
Impoundment Control Act of 1974, Pub. L. No. 93-344 (as amended
by Section 101(a)(2) of the Unfunded Mandates Reform Act of
1995, Pub. L. No. 104-4), the Committee adopts as its own the
estimate of federal mandates regarding H.R. 2193, as amended,
prepared by the Director of the Congressional Budget Office.
EARMARK STATEMENT
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 2193 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as described in clauses 9(e), 9(f), and 9(g) of rule
XXI.
ROLL CALL VOTES
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that the
following roll call votes occurred during the Committee's
consideration of H.R. 2193:
STATEMENT OF PERFORMANCE GOALS AND OBJECTIVES
Pursuant to clause (3)(c)(4) of rule XIII of the Rules of
the House of Representatives, the goal of H.R. 2193 is to
protect workers from heat stress and prevent heat-related
occupational illness and injury.
DUPLICATION OF FEDERAL PROGRAMS
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, the Committee states that no
provision of H.R. 2193 is known to be duplicative of another
federal program, including any program that was included in a
report to Congress pursuant to section 21 of Public Law 111-139
or the most recent Catalog of Federal Domestic Assistance.
HEARINGS
Pursuant to clause 3(c)(6) of rule XIII of the Rules of the
House of Representatives, the Committee's Subcommittee on
Workforce Protections held a hearing on May 25, 2022, entitled
``Examining the Policies and Priorities of the Occupational
Safety and Health Administration,'' which was used to develop
H.R. 2193. Relevant to H.R. 2193, the Committee heard from the
following witnesses: Mr. Douglas Parker, Assistant Secretary of
Labor for Occupational Safety and Health, U.S. Department of
Labor, Washington, DC, and Mr. Thomas Costa, Director of
Education, Workforce, and Income Security, Government
Accountability Office, Washington, DC. Relevant to developing
H.R. 2193, the Subcommittee heard testimony about the need for
a heat standard and the slowness of the OSHA rulemaking
process.
STATEMENT OF OVERSIGHT FINDINGS AND RECOMMENDATIONS
OF THE COMMITTEE
In compliance with clause 3(c)(1) of rule XIII and clause
2(b)(1) of rule X of the Rules of the House of Representatives,
the Committee's oversight findings and recommendations are
reflected in the descriptive portions of this report.
NEW BUDGET AUTHORITY AND CBO COST ESTIMATE
Pursuant to clause 3(c)(2) of rule XIII of the Rules of the
House of Representatives and section 308(a) of the
Congressional Budget and Impoundment Control Act of 1974, and
pursuant to clause 3(c)(3) of rule XIII of the Rules of the
House of Representatives and section 402 of the Congressional
Budget and Impoundment Control Act of 1974, the Committee has
received the following estimate for H.R. 2193 from the Director
of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, September 27, 2022.
Hon. Robert C. (Bobby) Scott,
Chairman, Committee on Education and Labor,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2193, the Asuncion
Valdivia Heat Illness and Fatality Prevention Act of 2022.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Meredith
Decker.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
H.R. 2193 would require the Occupational Safety and Health
Administration (OSHA) in the Department of Labor (DOL) to issue
an occupational safety and health standard related to
employees' exposure to heat stress. DOL also would be required
to update the National Agricultural Workers Survey to identify
heat-related illnesses and injuries and report to the Congress
on its implementation.
Under current law, OSHA can issue occupational safety and
health standards. In 2021, the agency initiated a rulemaking
concerning job-related heat illness and injury. The new OSHA
standards established under the bill would apply to federal
personnel, but CBO expects that agencies would not have to
change their practices significantly to comply with those
standards. As a result, CBO estimates that implementing H.R.
2193 would have no significant cost.
H.R. 2193 would impose an intergovernmental and private-
sector mandate as defined in the Unfunded Mandates Reform Act
(UMRA) by requiring employers, including public employers, to
comply with the new standard.
CBO cannot anticipate the details of the standard and thus
cannot determine whether the costs would exceed the annual
intergovernmental and private-sector thresholds established in
UMRA ($92 million and $184 million, respectively, in 2022,
adjusted annually for inflation). Because the standard could
cover many employers and industries and could require expensive
mitigation including engineering controls and acclimatization
plans, the costs could be large. However, any costs would be
mitigated by voluntary compliance, existing state rules on heat
protection, and savings to employers from reduced injury and
employee absence.
The CBO staff contacts for this estimate are Meredith
Decker (for federal costs) and Andrew Laughlin (for mandates).
The estimate was reviewed by H. Samuel Papenfuss, Deputy
Director of Budget Analysis.
COMMITTEE COST ESTIMATE
Clause 3(d)(1) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison of the
costs that would be incurred in carrying out H.R. 2193.
However, clause 3(d)(2)(B) of that rule provides that this
requirement does not apply when the committee has included in
its report a timely submitted cost estimate of the bill
prepared by the Director of the Congressional Budget Office
under section 402 of the Congressional Budget and Impoundment
Control Act of 1974.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
The bill does not change existing law for purposes of
clause 3(e) of rule XIII of the Rules of the House of
Representatives.
MINORITY VIEWS
INTRODUCTION
Committee Republicans recognize the importance of keeping
workers safe in the workplace, and this includes protecting
them from exposure to extreme heat. However, a rushed,
burdensome, one-size-fits-all national heat standard, as
required by H.R. 2193, is not the best way to address a complex
hazard. Unfortunately, instead of holding a hearing on the
legislation to hear from experts, Democrats released an
entirely new bill as their Amendment in the Nature of a
Substitute (ANS) one day before the markup. The Democrats'
approach to jam a bill through Committee without gathering
appropriate feedback from stakeholders and Members of the
Committee is ironically appropriate, considering that H.R.
2193's purpose is to rush the Occupational Safety and Health
Administration's (OSHA) rulemaking process.
H.R. 2193 is completely unnecessary because OSHA has
existing authority to cite employers for failure to address
excessive heat in the workplace and is in the process of
writing a heat illness prevention standard. With this
legislation, Democrats are attempting to appease Big Labor and
environmental activists who contend there is a ``climate
emergency'' necessitating congressional action. Committee
Republicans reject the Democrats' belief that more top-down
mandates from Washington are the answer and are united in their
opposition to H.R. 2193.
OCCUPATIONAL HEAT PROTECTIONS ALREADY EXIST
With this legislation, Democrats fail to acknowledge that
occupational exposure to excessive heat is a well-known hazard
that has long been recognized by OSHA, employers, and workers.
While the agency does not currently have a specific regulatory
standard for occupational exposure to excessive heat, it
enforces heat stress under the general duty clause of the
Occupational Safety and Health Act (OSH Act), which requires
employers to take affirmative steps to protect their employees
and provide a workplace that is free from recognized
hazards.\1\ Additionally, other federal safety and health
standards address the heat hazard: for example, the standards
on sanitation, medical services and first aid, recordkeeping,
safety ``training'' and education, and personal protective
equipment all include consideration of heat hazards.\2\
Further, on April 8, 2022, OSHA launched a National Emphasis
Program to inspect worksites for outdoor and indoor heat-
related hazards, putting employers on notice of their
obligation to address heat in the workplace.\3\ Clearly, then,
OSHA already both recognizes and enforces workplace exposure to
excessive heat.
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\1\29 U.S.C. Sec. 654(a)(1).
\2\See Letter from David Michaels, Assistant Sec'y for Occupational
Safety & Health, to Sydney Wolfe, Dir., Publ. Citizen's Health Research
Group (June 7, 2021), https://www.citizen.org/wp-content/uploads/
migration/denial-of-heat-stress-petition.pdf.
\3\OSHA, National Emphasis Program--Outdoor and Indoor Heat-Related
Hazards (Apr. 8, 2022), https://www.osha.gov/sites/default/files/
enforcement/directives/CPL-03-00-024.pdf.
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Beyond its enforcement initiatives, OSHA also engages in
educational campaigns and outreach regarding the hazard of
heat. This includes on-site consultations with employers
explaining heat illness prevention in the workplace.\4\ OSHA
regional offices also conduct outreach programs, including
stand-downs on heat illness prevention.\5\ Lastly, OSHA's
alliance participants conduct heat-illness prevention outreach
activities.\6\
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\4\Kurt Petermeyer, U.S. Dep't of Lab., How OSHA's On-Site
Consultation Program is Helping Small Businesses Protect Workers from
Extreme Heat (May 26, 2022), https://blog.dol.gov/2022/05/26/how-oshas-
on-site-consultation-program-is-helping-small-businesses-protect-
workers-from-extreme-heat.
\5\News Release, OSHA announces Safety Stand-Down at worksites
throughout Southeast to emphasize response to, prevention of heat-
related illnesses, injuries (June 23, 2016), https://www.osha.gov/news/
newsreleases/region4/06232016.
\6\OSHA, Alliance Program Participants Developed Products, https://
www.osha.gov/alliances/products.
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Despite these education programs and active enforcement
efforts that already protect workers formulated and enforced by
the agency, H.R. 2193 takes a Congress-knows-best-approach and
forces OSHA to promulgate an interim final heat standard in
only one year, an incredibly rushed timeline.
Democrats also fail to recognize that many employers have
designed and implemented effective heat injury and illness
prevention programs based on OSHA's existing guidance and
tailored to address the hazards at their specific workplace.
The Coalition for Workplace Safety (CWS)\7\ explained this in a
letter to the Committee:
---------------------------------------------------------------------------
\7\CWS is comprised of associations and employers that believe in
improving workplace safety through cooperation, assistance,
transparency, clarity, and accountability. See CWS, About the
Coalition, https://workingforsafety.com/about-cws/.
OSHA's use of [heat] guidance, coupled with the
general duty clause in enforcement proceedings in heat
illness cases, has had positive results. It gives
employers the flexibility to create a program that fits
their unique environment while still providing useful
information and elevating the concern around heat
exposure. Every worksite is different, from
construction to manufacturing to retail, and all these
workplaces have different factors related to protecting
employees from excessive exposure to heat.\8\
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\8\Letter from CWS to Reps. Bobby Scott & Virginia Foxx (July 27,
2022), https://workingforsafety.com/wp-content/uploads/sites/4/Letter-
to-House-Ed-Labor-Committee-HR-2193-heat-standard.pdf.
Because OSHA already uses existing authority to protect
workers from excessive heat, and because employers are on
notice and have implemented programs to protect their workforce
from this hazard, the rushed timeline required by H.R. 2193 is
completely unnecessary.
H.R. 2193 IS UNNECESSARY BECAUSE OSHA IS ALREADY WRITING A HEAT
STANDARD
Advancing legislation to force OSHA to issue such a
standard covering occupational exposure to excessive heat is
unnecessary considering that OSHA has the authority under
current law to issue a heat standard and that the Biden OSHA is
already in the process of writing such a standard. The agency
issued an Advanced Notice of Proposed Rulemaking (ANPRM) in
October 2021 requesting public comment on hazardous heat in the
workplace and on the nature and effectiveness of interventions
and controls to prevent heat-related injury and illness, and it
is following the proper regulatory process allowing OSHA to
determine a workable policy.\9\ The normal regulatory process
allows OSHA to determine what policy is best--both to protect
workers and to provide employers with the necessary support and
flexibility to ensure employees are safe on the job.
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\9\Heat Injury and Illness Prevention in Outdoor and Indoor Work
Settings, 86 Fed. Reg. 59,309 (Oct. 27, 2021).
---------------------------------------------------------------------------
Committee Democrats are advancing H.R. 2193 with a
prescriptive timeline for issuing regulations because they
believe the agency's rulemaking process takes too long.
However, even the Biden OSHA has acknowledged that responsible
rulemaking takes time and that OSHA has already received
thousands of comments from stakeholders and employers which
will help ensure the heat standard is based on the most recent
science and data.\10\ Democrats are seeking to appease their
activist base that contends the rushed timeline is necessary
due to the ``climate crisis.'' However, the agency could have
moved much quicker on a heat standard if President Biden did
not order it to waste so much time promulgating an illegal
vaccine-and-testing mandate in 2021.\11\
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\10\Paige Smith, Worker Heat Protection Measure to Get House Panel
Attention, Bloomberg Gov't, July 21, 2022, https://www.bgov.com/next/
news/RFDZG0T1UM0W.
\11\NFIB v. OSHA, 142 S. Ct. 661 (2022).
---------------------------------------------------------------------------
H.R. 2193 WILL LEAD TO A ONE-SIZE-FITS-ALL
Standard H.R. 2193 requires OSHA to issue a one-size-fits-
all national heat standard mandating prescriptive measures to
address a complex hazard. The bill's approach is ill-advised
because climate varies from region to region and therefore what
may be considered extreme temperatures in one part of the
country could be the norm in another. For example, a
construction worker in Florida will be more acclimated to
working in temperatures above 80 degrees than a construction
worker in Wisconsin.
In a letter to the Committee, the American Farm Bureau
Federation (AFBF) said that a one-size-fits-all heat standard
would be unworkable for agricultural production in many regions
of the United States:
Considering the variances in agricultural work and
climate, AFBF questions whether the department,
especially under the conditions outlined in either H.R.
2193 or the amended version, can develop additional
heat illness regulations without imposing new, onerous
burdens on farmers and ranchers that will lead to
economic losses.\12\
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\12\Letter from Zippy Duvall, President, Am. Farm Bur. Fed'n, to
Reps. Bobby Scott & Virginia Foxx (July 27, 2022) (on file).
Further, the legislation's one-size-fits-all approach does
not account for the existing employer protocols already in
place to meet the characteristics of a particular workplace.
The National Association of Manufacturers points out that
workplaces have ``many variations in indoor temperature
settings, different ventilation strategies, certain temperature
requirements for product specifications, and a diverse range of
other operational controls within the manufacturing sector
dependent on the facility and the products being made.''\13\
Employers are in the best position to assess potential heat
hazards in specific workplaces, and one-size-fits-all diktats
handed down from Congress should be rejected.
---------------------------------------------------------------------------
\13\Letter from Brian Walsh, Dir., Nat'l Ass'n of Mfr., to Reps.
Bobby Scott & Virginia Foxx (Aug. 2, 2022) (on file).
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H.R. 2193 DEPRIVES STAKEHOLDERS OF MEANINGFUL INPUT
H.R. 2193 allows OSHA to bypass important laws governing
the regulatory process, which will mean depriving stakeholders
of the opportunity to offer meaningful input. The bill includes
a provision requiring OSHA to issue an interim final standard
within one year establishing a heat protection standard and
related recordkeeping and reporting requirements, allowing the
agency to disregard rulemaking requirements under the OSH Act,
important regulatory laws such as the Administrative Procedure
Act which typically require public notice-and-comment before a
rule goes into effect, and requirements under the National
Environmental Policy Act. The timeline requiring OSHA to issue
an enforceable interim final standard within one year without
soliciting public notice and comment will lead to a rushed
interim final standard that does not allow for due diligence,
careful analysis, and essential research on the most workable
and feasible approach to addressing heat illness prevention.
H.R. 2193 first requires OSHA to issue an interim final
rule and subsequently accept comments from the public.
According to the Construction Industry Safety Coalition
(CISC),\14\ ``this turns the process completely on its head and
deprives regulated entities of the ability to provide
meaningful input at a critical time in the regulatory
process.''\15\ While Democrats will claim the public will have
the opportunity to comment during the development of a final
standard, they completely ignore the fact that, historically,
few interim final rules are ever modified due to public
feedback, making it all the more likely that the interim final
standard will remain in place as a final standard.
---------------------------------------------------------------------------
\14\CISC is made up of 30 trade associations, representing
associations from all sectors of the construction industry, committed
to helping create safer construction jobsites for workers. Its members
include the Associated Builders and Contractors, the Associated General
Contractors, and the National Association of Home Builders. ABOUT CISC,
https://www.buildingsafely.org/about-cisc/.
\15\Letter from CISC to Reps. Bobby Scott & Virginia Foxx (July 27,
2022), https://www.buildingsafely.org/wp-content/uploads/2022/07/CISC-
HR-2193-Mark-Up-on-Amendment-Letter-7.27.2022.pdf.
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In addition, H.R. 2193 could force OSHA to bypass the Small
Business Advocacy Review Panel and ignore small business
concerns to meet the arbitrary deadline required in the
legislation. Under OSHA's normal rulemaking process, the Small
Business Regulatory Enforcement Fairness Act (SBREFA) requires
the agency to convene this important panel to solicit their
feedback before proposing rules that would have a significant
economic impact on a substantial number of small entities.\16\
Bypassing the SBREFA panel would be detrimental to the
regulatory process, as convening this panel is an important
part of crafting any safety regulation. It also allows small
businesses to comment on regulatory text.
---------------------------------------------------------------------------
\16\OSHA, Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA), https://www.osha.gov/smallbusiness/sbrefa.
---------------------------------------------------------------------------
Bypassing the SBREFA panel is especially concerning
considering the National Federation of Independent Business
(NFIB) has said H.R. 2193 will have a disproportionate impact
on small businesses:
Unlike large businesses that have entire compliance
departments, small business owners themselves will have
to decipher and implement new regulations that result
from this legislation. Formulating a detailed new plan,
training employees, monitoring exposure, implementing
new recordkeeping procedures, and additional mandates
will require a significant amount of time and money,
both of which are in short supply for small business
owners.\17\
---------------------------------------------------------------------------
\17\Letter from Kevin Kuhlman, Vice President, Federal Government
Relations, National Federation of Independent Business, to Reps. Bobby
Scott & Virginia Foxx (July 27, 2022) (on file).
Small businesses are already getting crushed by inflation
and overregulation in the Biden economy. The last thing
Congress should do is deprive small businesses of their input
on an OSHA rule and further harm them with burdensome,
ineffective regulations.
H.R. 2193 also ignores the fact that OSHA has already
received hundreds of public comments on the development of a
heat standard that is already under way at the agency. In
response to OSHA's October 2021 ANPRM, many stakeholders
expressed concerns about the workability of a national heat
standard. H.R. 2193 would allow OSHA to ignore the valuable
input it has already collected through the ANPRM and would
instead force the agency to adopt a prescriptive standard as
outlined in the bill. Our nation's job creators and workers
deserve a voice in the regulatory process, as they have long
had under current law, but this legislation deprives them of
that right.
H.R. 2193 GIVES UNDUE POWER TO OSHA
At the Committee markup, Democrats amended H.R. 2193 to add
provisions intended to embolden OSHA by limiting judicial
oversight. It is clear that, after the authoritarian
vaccination-and-testing mandate was rebuked by the Supreme
Court,\18\ Democrats are seeking to change OSHA's longstanding
judicial review process. H.R. 2193 tilts the scales against
employers challenging any of the heat standards under the bill
to ensure OSHA prevails in court.
---------------------------------------------------------------------------
\18\NFIB v. OSHA, 142 S. Ct. 661 (2022).
---------------------------------------------------------------------------
Specifically, the provision adopted in the Democrat ANS
requires that any challenges to the rules issued under the bill
must be filed in the U.S. Court of Appeals for the D.C.
Circuit.\19\ Under current law, challenges to OSHA rules are
filed in the circuit court of appeals where the challenger is
located.\20\ This makes sense in light of the regional impact
of OSHA rules. The new provision is intended to reduce judicial
oversight by limiting challenges to one Democrat-leaning
circuit, which Democrats hope will uphold the hastily drafted
heat regulations under the legislation. In addition, Committee
Democrats also added a provision to the bill that subverts the
judicial process by eliminating the ability of litigants to
seek injunctive relief.\21\ According to CISC, these provisions
are a ``clear violation of the Separation of Powers Clause
enumerated in the U.S. Constitution.''\22\
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\19\ANS to H.R. 2193 (117th Cong.) Sec. 3(c)(5)(a), https://
docs.house.gov/meetings/ED/ED00/20220727/115072/BILLS-117-2193-A000370-
Amdt-1.pdf.
\20\29 U.S.C. Sec. 655(f).
\21\ANS to H.R. 2193 (117th Cong.) Sec. 3(c)(5)(a).
\22\Letter from CISC to Reps. Bobby Scott & Virginia Foxx, supra
note 15.
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Incredibly, H.R. 2193 also creates a new deference standard
to require the Occupational Safety and Health Review Commission
(OSHRC), an independent agency tasked with reviewing OSHA
enforcement actions, to give ``substantial deference'' to OSHA
in its review of heat citations.\23\ This provision would force
OSHRC to accept OSHA's interpretation of H.R. 2193. As CWS
explains, the whole point of OSHRC is to have an independent
special issue tribunal to adjudicate OSHA citations, not to
have OSHRC rubber-stamp OSHA's conclusions.\24\ Taken together,
it is clear these provisions were added to H.R. 2193 to empower
OSHA and to limit judicial and administrative oversight because
Democrats have no confidence OSHA can write a legally
defensible rule.
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\23\ANS to H.R. 2193 (117th Cong.) Sec. 4(b)(2).
\24\Letter from CWS to Reps. Bobby Scott & Virginia Foxx, supra
note 8.
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H.R. 2193 UNFAIRLY PUNISHES JOB CREATORS
H.R. 2193 continues Committee Democrats' assault on job
creators by emboldening OSHA inspectors to issue gotcha
citations that primarily seek to punish employers rather than
to keep workers safe. Already faced with the struggling Biden
economy, our nation's job creators do not need more burdensome
requirements that target employers instead of improving
workplace safety.
The ANS to H.R. 2193 expands the statute of limitations for
citations under the heat standards issued under this bill from
six months under current law to four years following the
occurrence of a violation.\25\ Committee Republicans believe
every worker deserves safe and healthy work conditions and
support OSHA's authority to hold bad actors accountable.
However, issuing more and more citations against employers for
minor infractions and mere paperwork errors that allegedly took
place up to four years ago is not the most effective way to
keep workplaces safe. Unfortunately, Democrats continue to
focus on punishing employers with this provision rather than on
collaborating with them to adopt proactive policies and prevent
workplace hazards before they develop.
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\25\ANS to H.R. 2193 (117th Cong.) Sec. 4(b)(1); 29 U.S.C.
Sec. 658(c).
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H.R. 2193 UPENDS OSHA'S WHISTLEBLOWER PROTECTIONS
Committee Democrats added a provision in their ANS that
inappropriately subverts the longstanding OSHA whistleblower
process relating to workplace safety. Specifically, the
provision creates a private right of action for an employee to
sue an employer in federal court if OSHA decides a
whistleblower claim is without merit.\26\
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\26\ANS to H.R. 2193 (117th Cong.) Sec. 4(d)(2).
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Current law already protects employees from unlawful
retaliation, and OSHA takes these claims very seriously.
Section 11(c) of the OSH Act prohibits employers from
retaliating against employees for exercising a variety of
rights guaranteed under the OSH Act, such as filing a safety or
health complaint with OSHA, raising a health and safety concern
with their employers, participating in an OSHA inspection, or
reporting a work-related injury or illness.\27\ Through its
Whistleblower Protection Program, OSHA is tasked with
investigating retaliation claims and either dismissing the
complaint if the agency finds no merit to the retaliation claim
or seeking restitution for an individual found to have been
retaliated against by his or her employer for informing
authorities of unsafe working conditions.\28\
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\27\29 U.S.C. Sec. 660(c).
\28\OSHA, Whistleblower Protections, https://
www.whistleblowers.gov/.
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If OSHA decides that a claim does not warrant relief, the
matter should end there. Congress should not encourage more
frivolous lawsuits. This provision added to H.R. 2193 is not
about protecting whistleblowers--who are already protected
under current law. Instead, it is a handout to trial lawyers,
one of the Democrats' favorite constituencies.
REJECTED AMENDMENTS THAT WOULD HAVE IMPROVED THE BILL
During consideration of H.R. 2193, Committee Republicans
offered amendments to improve the bill that were rejected by
Committee Democrats. Rep. Fred Keller (R-PA) offered an
amendment striking the provision requiring that challenges to
heat standards under the bill can only be filed in the U.S.
Court of Appeals for the D.C. Circuit. This harmful provision
included in the Democrat ANS is a blatant attempt to tilt the
scale so that OSHA has a better chance to prevail in court.
Rep. Keller's amendment would have allowed circuit courts
around the country to rule on OSHA rules on heat hazards, as
they have always done. Unfortunately, Democrats rejected this
sensible amendment that would have maintained judicial
oversight.
Rep. Bob Good (R-VA) offered an amendment striking the
provision that would expand the statute of limitations for OSHA
citations against employers for violations of heat standards
from six months under current law to four years. This harmful
provision included in the Democrat ANS seeks to add punitive
requirements that embolden bureaucrats to go after employers
rather than to improve workplace safety. Rejecting the
amendment on party-lines, Committee Democrats continued their
crusade against job creators.
Rep. Michelle Steel (R-CA) offered an amendment requiring
that OSHA convene a Small Business Advocacy Review Panel before
publishing an interim final rule. OSHA's normal rulemaking
process requires the agency to convene this important panel
before proposing rules that would have a significant economic
impact on a substantial number of small entities in order to
solicit their feedback. H.R. 2193 allows OSHA to ignore small
business concerns to meet the arbitrary deadline required in
the legislation. Rep. Steel's amendment would have ensured that
small businesses have a voice in the regulatory process for the
heat standard. Committee Democrats chose to deprive small
businesses of their input and rejected this amendment.
CONCLUSION
OSHA is already in the process of soliciting data and
public feedback on the development of a heat standard, and it
is baffling that Democrats are advancing H.R. 2193. Not only
does this bill ignore the ongoing rulemaking process, but it
also gives more power to OSHA, harms job creators and workers,
and limits judicial oversight. Occupational exposure to
excessive heat is a well-known hazard that has long been
recognized by OSHA, employers, and workers. There are current
protections under the OSH Act to ensure workers are protected
while OSHA develops a workable and feasible heat standard. The
agency does not need additional enforcement authority from
Congress. Rather than ensuring workplace safety, the purpose of
advancing H.R. 2193 is to appease Democrats' activist base that
contends the rushed timeline required in the bill is necessary
due to the ``climate crisis.'' Congress should reject this
unnecessary legislation.
Virginia Foxx,
Ranking Member.
Joe Wilson.
Glenn ``GT'' Thompson.
Tim Walberg.
Glenn Crothman.
Elise M. Stefanik.
Rick W. Allen.
Jim Banks.
James Comer.
Russ Fulcher.
Fred Keller.
Mariannette Miller-Meeks, M.D.
Burgess Owens.
Bob Good.
Lisa C. McClain.
Mary E. Miller.
Scott Fitzgerald.
Chris Jacobs.
[all]