[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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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/.
---------------------------------------------------------------------------
    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].
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
           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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
           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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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/.
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \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/.
---------------------------------------------------------------------------
           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.
---------------------------------------------------------------------------
           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.
---------------------------------------------------------------------------

                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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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).
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    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.
---------------------------------------------------------------------------
    \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.
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    \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\
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    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------

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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
                   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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

                               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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------

          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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \25\ANS to H.R. 2193 (117th Cong.) Sec. 4(b)(1); 29 U.S.C. 
Sec. 658(c).
---------------------------------------------------------------------------

           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\
---------------------------------------------------------------------------
    \26\ANS to H.R. 2193 (117th Cong.) Sec. 4(d)(2).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \27\29 U.S.C. Sec. 660(c).
    \28\OSHA, Whistleblower Protections, https://
www.whistleblowers.gov/.
---------------------------------------------------------------------------
    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]